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Category Archives: private law

High Court Judges have no magic wand



NOT Mr Justice Holman and friend

Absolutely NOT Mr Justice Holman and friend  (I don’t like the look of New Sooty here – he is frankly quite disturbing, but I wanted a wand picture with Sweep in it to please my Twitter followers)




In Re D (Children) 2015 , Mr Justice Holman made some very important observations about the importance of judicial continuity, particularly in cases where there are intractable difficulties about contact. He also expressed some exasperation that cases often reach a point where the Judges just give up trying and transfer the case to the High Court in the hope that somehow the High Court can magically fix everything.


  1. Cases concerning intractable contact, probably more than any other case within the field of family law, require judicial continuity. There tends to be a need for a number of hearings, and it is of the utmost importance that one single judge deals with such a case from first to last so that he or she becomes very familiar with the dynamics of the a case, and the parties, in turn, become familiar with the judge who is dealing with their case. This makes it particularly inappropriate and unsuitable that a case of this kind is ever listed before an occasional visiting High Court judge unless that judge is known to be making repeated return visits to the area in question.
  2. I myself am currently sitting here in Leeds for about three weeks. I am not scheduled to be sitting again in Leeds or anywhere in Yorkshire throughout 2016, and I have no idea where I will be sitting after that. In other words, I cannot give to this case any judicial continuity whatsoever. I am merely, as it were, passing through it. For the reasons I have indicated, that is highly undesirable, and listing officers should take great care to ensure that it does not happen in relation to a case of this kind.
  3. I am aware that in some cases involving intractable contact judges of a lower tier sometimes believe that in some way a High Court judge can bring a new insight to the case, or bring about change which the lower tier judge has been unable to achieve. The fact of the matter is that I do not have any power in relation to this case which is not possessed also by a local circuit judge. I have no “magic wand”, and any advantage in the case being heard by a High Court judge is more than outweighed by the disadvantage that there can be no judicial continuity.


This case bizarrely turned on an alleged telephone conversation between mother and the CAFCASS officer, who records in the very short “initial safeguarding enquiries”


“[The mother] stated that whilst she was in a relationship with [the father] he once threw [the elder son] across the bedroom on to a mattress whilst he was angry. She stated that he had never been physically violent towards her or the children but he had bullied her through verbal taunts during their relationship. [The mother] stated that [the father] has sleep problems and this has led to him on occasions wrapping blankets around [the elder son’s] head whilst they shared a bed. She also stated that [the father] has also made unwanted sexual advances towards her whilst he has been asleep and she fears that the children would be at risk if he were to be in the sole care of the children at night time.”


The mother instead says that she did not say that the father had not been violent to herself or the children and that there were very substantial allegations of domestic violence to be determined.

She had contacted four solicitors, each of whom she says told her that she would be unable to get legal aid because the CAFCASS report said that there was no violence.  [I think there might be more to this than meets the eye, as I’d expect at least one of them to have said “But if you dispute that you said that, and you do say there was Domestic violence, lets have a look at how you evidence it”, but the Judge was satisfied that this is what had happened]


When she raised the issues before the Family Court in person, the Judge there relied substantially on the passage quoted above to show that there was no violence, but did not contact the CAFCASS officer to ask for clarification as to why the report says that but mother disputed it, or call the CAFCASS officer to give evidence. Instead, the passage was rather taken as gospel.  Also rather oddly, when hearing the disputed evidence, rather than having the parents in the witness box giving evidence and cross-examining each other, it proceeded more on the basis of a conversation going backwards and forward.


  1. The reality of the matter is that the mother makes very considerable allegations of serious aggression and violence by the father towards her, and separately the children, including her daughter. This case is a very serious one. There are very serious allegations and issues at stake; and, subject to means (but she says she is entirely dependent on state benefits), this mother desperately needs proper legal representation and the court desperately needs the mother (and ideally also the father) to be properly legally represented if it is to get to the bottom of the truth of the matter. To date, however, neither parent has had any legal representation.
  2. So it came about that the case was listed for a fact finding hearing before a district judge which took place on 30th and 31st March 2015. Both parents represented themselves. I wish to make crystal clear that in what I am about to say I do not intend any criticism whatsoever of the district judge concerned (whom I do not know) who obviously did his very best in a difficult situation.
  3. The unsatisfactory nature of the hearing perhaps emerges from paragraph 15 of the transcript of his ex tempore judgment in which he says:

    “Because both parties were unrepresented, as opposed to cross-examination I allowed both parties to have their say and move the matter backwards and forwards and I heard at length from both the parties who confirmed the contents of their written documentation and gave oral evidence. I am satisfied I heard sufficient yesterday to enable me to reach some conclusions.”

    Importantly, he went on to say:

    “I do not doubt that mother genuinely wants what is best for her children and the views she expresses are her genuinely held views.”

  4. However, I have to say that the judgment as a whole contains little account of the detail or content of the evidence that was given, or any real analysis of it. The judge said at the end of paragraph 16 of his judgment:

    “At the end of the day what this court has to grapple with is whether this father is a risk to his children.”

    He then referred to that initial safeguarding report by CAFCASS and the fact that within it the mother is reported as having:

    “…stated that he had never been physically violent towards her or the children…”

    Shortly after that he says in his judgment:

    “I cannot ignore the fact that that is what it is said that mother is reporting, but other than those matters specifically referred to he had never been physically violent towards her or the children.”

  5. I have been told by the mother yesterday, and this was confirmed by the CAFCASS officer who is now the children’s guardian and was present at the hearing on 30th March 2015, that the mother strongly said then, as she says now, that she did not say to that first CAFCASS officer what he recorded her as having said. Deeply regrettably, the officer was never contacted. He was never asked to come to court. Whatever notes he may have made of the telephone conversation have never been produced or examined.
  6. The upshot is that this case has been very decisively affected by a few challenged lines in that initial safeguarding report, which are themselves based purely on a single telephone conversation of which no original record has been produced. They appear to have had the effect that the solicitors whom the mother approached thought that it was forlorn even to apply for legal aid. They appear clearly to have decisively influenced the district judge in the decisions that he reached on the facts.
  7. The upshot is that so far as any allegations of aggressive or violent behaviour towards the children are concerned, the district judge was not satisfied that anything had happened except for one incident, which became known as the “bedroom incident”, in which he concluded that the facts lay somewhere in the middle of what the mother alleged and the father admitted.
  8. In relation to the mother’s allegations of aggression and violence towards herself, the district judge simply said at paragraph 28:

    “Insofar as allegations of behaviour directed against the mother are concerned, again I hear what mother says. I make no specific findings one way or the other, but these are allegations relating to the mother. Mother is not suggesting to her credit that the behaviour was such that she is living in fear of father. They are now separated. If there had been incidents, they are not going to re-occur because the parties are not together. Again, I am not satisfied that anything I have heard satisfies me that this father is a risk to his children.”

    When I say that the allegations made by the mother (I stress very clearly that I have no position whatsoever as to the truth or otherwise of them) include an allegation of raping her, it can be seen that that particular paragraph fails adequately to analyse the evidence and reach conclusions in a situation where conclusions were required.

  9. At all events, the thrust of the judgment and decision of the district judge was that there was nothing in the past behaviour or attitudes of the father which represented any risk to the two boys in having contact, including unsupervised and ultimately staying contact with him. The district judge then made an order dated 31st March 2015 which provided that the children shall live with their mother and should have specified periods of contact with their father, initially supervised and later unsupervised but based on a specified contact centre.



Holman J determined that the only real approach here was to treat the mother’s case as application for permission to appeal, he granted that permission, and he set the findings aside and directed that there must be a re-hearing of the evidence.  That wasn’t to say that he was ruling that mother’s allegations were correct, rather that they needed to be properly heard and tested, and not to simply place reliance on one sentence of a CAFCASS officer’s recollection of a telephone conversation when that recollection was disputed.


  1. For those reasons I have concluded, however unusually, that I should treat the mother’s strongly stated position that the district judge made mistaken findings, as representing an oral application for permission to appeal and permission to appeal out of time from those findings of fact. I propose to grant her permission to appeal. I propose to allow the appeal and set aside the findings of fact reached by the district judge. I will give detailed orders and directions, in terms that have already been fully discussed, for this whole matter to be allocated with a fresh start to a local circuit judge who must now deal with the case with maximum judicial continuity. There will be directions designed to achieve that there is a satisfactory complete re-consideration of the true facts.
  2. I strongly hope that the mother, who in my view is clearly entitled to it in view of the serious allegations she makes, can obtain legal aid. I regret that the father is unlikely himself to be able to obtain legal aid, both because he is the respondent rather than the maker of the allegations of violence and abuse, and because his income may make him financially ineligible. The rest of the detailed orders and directions are, I think, self-explanatory and do not require further reference in this judgment.


Even without his wand, Holman J can still work magic and ‘get busy’ …

Sweep being rather startled by the facts of this case

Sweep being rather startled by the facts of this case

No winners here only losers


The Court of Appeal dealt with an intractable contact case in Re Q  a child 2015


In this case, which involved a boy aged 8, and private law contact proceedings that have now been going on since May 2008, some seven years and almost his entire life. The boy lives with his mother and the father had not been able to have meaningful contact since the parents separated in February 2008.

The trial judge, His Honour Judge Brasse, reached the following conclusions

In his judgment, Judge Brasse set out that:

      1. “the conclusion that the court has come to on the basis of having heard and read a huge amount of evidence over those years is this:
  • the father is well disposed towards his son and has never done him any deliberate harm;
  • the allegations against the father are manifestly false;
  • the recent allegations made by the child against the father are so incoherent that it is difficult to formulate any single consistent charge against him;
  • the evidence in my judgment is overwhelmingly in support of the view that this child has been influenced by the mother’s hostility towards the father. She has demonstrated by the presentation of her case over and over again that she is only willing to hear from this child what supports her view, and ignores those parts of his presentation which does not.”


We don’t know what those allegations are, but can probably guess at their approximate nature. The important thing is that after seven years of litigation the wealth of evidence before the Court was such that it was clear that false allegations had been made against dad in order to thwart his contact and that father would be perfectly safe to have contact.


Sadly, as a result of this behaviour by the mother, the Judge was also of the view that ordering contact to take place now would also harm the child. He set out, rather mournfully, the possible options before the Court


  1. He set out events since his previous judgment on 9 January 2014. He identified the four options before him:

    i) To order the mother again to allow contact: He rejected this, accepting KD’s advice that it would, for reasons he identified, be harmful to Q.ii) To order a section 37 report and engage the help of the local authority: He agreed with KD’s view that, for reasons he set out, this would be highly likely to cause Q harm. Moreover, as he commented, to go down this route would be both undesirable and unnecessary; undesirable because it would prolong the proceedings and unnecessary because he could make an order today – a specific issue order – which would achieve exactly the same thing.

    iii) To bring the proceedings to an end without further order: He described this as the counsel of despair.

    iv) To enlist the assistance of the Violet Melchett Centre.

  2. In relation to option (iii), Judge Brasse said this:

    “The third possibility is the counsel of despair – that is that notwithstanding the harm which I have found as a fact to have been caused to this child by the mother’s influence, and the harm that he would suffer from not being able to develop a relationship with his father, which I have also found, the course of least harm would be to bring these proceedings to an end without further order. That would leave Q living with his mother, who provides well for him materially and educationally and, apart from supporting the relationship with his father, provides a loving atmosphere for the child too.

    [Counsel] submits on behalf of the father that that would leave Q with an entirely false view of his father as some kind of monster; that would do huge harm to Q in the long term, because Q as he grew older would reflect that part of his biological inheritance comes from a person who is that horrible. He would have no sound or realistic understanding of his identity because he would be cut off from his father and his father’s family. With all that I agree. But, once again, at this juncture to force a child against his wishes into contact sessions would cause just an aggravation of the harm which was manifest in the reports the court received.”

  3. In relation to option (iv), Judge Brasse said:

    “The fourth possibility which was foreshadowed in the guardian’s position statement but developed in the course of argument was that as the child has been seriously emotionally harmed (I would attach the expression, “significantly emotionally harmed”), as a result of the care he has received – that not being what it would be reasonable to expect a parent to give him – some affirmative action should be taken to address the harm and, if possible, reverse it. As, in the guardian’s view, removal of the child from the mother’s care is not a reasonable option, if this child’s welfare is to be protected and safeguarded, then at the very least the court should ensure he receives psychological intervention.

    And there, it was submitted, appeared a glimmer of hope. The Violet Melchett Centre is a well-established NHS resource staffed by very experienced people who have, over the decades, helped children who have been harmed as a result of parental conflict. This child, I have found as a fact, has been significantly harmed as a result of parental conflict. The Centre can offer help of an effective kind if the parents themselves are willing to participate. Here, [the mother] is. She has said so in terms to this court. Further, she has agreed that she would not place any impediment in the way of [the father] to participate in that therapeutic process if he wished; and, thirdly, it would be possible to ensure that the therapists were provided only with, as I put it, “neutral” information …

    The object of the sessions at the Violet Melchett Centre would be, as I have said, to repair the emotional harm; possibly if the therapist thought this was helpful, to promote communication between the parents of a helpful kind; and possibly to revive the seriously damaged relationship between the child and his father.

    Violet Melchett have informed the guardian they would not start work until these proceedings have come to an end, because the continuation of the proceedings cause an additional stress for the child which is out of their control.”

  4. The judge’s overall conclusion was summarised in these two paragraphs:

    “I find the child, as I have explained, has suffered significant emotional harm which continues to go unaddressed while he is living in an atmosphere which is so hostile to his father, and I find that there is clearly a case that this child needs therapeutic intervention as he is unlikely to recover from the emotional harm unless such steps are taken. I am persuaded that he needs a cessation of these proceedings for that therapeutic intervention to be effective.

    … So my conclusion is that I shall make a specific issue order, and I shall order that both parents co-operate in the referral of this child to the Violet Melchett Centre for an assessment of his emotional and psychological wellbeing, and for such treatment as the staff at the Violet Melchett Centre recommend.”



Somewhat surprisingly, the mother had expressed a willingness to participate. The difficulty that the Judge found himself in, having dealt with options three and four in the way he had, was to be told that the staff at the Violet Melchett Centre had a clear view that in order to meaningfully work with the family, the court proceedings had to come to an end.  That of course meant that the proceedings, which had lasted seven years and where mum had tried to thwart dad having contact or a contact order would end with no order about future contact.

Understandably, dad appealed this decision, feeling that it flew in the face of fairness and the principles that the Court ought to not give up on contact without properly exhausting all of the options.


  1. Inevitably in these circumstances the debate before us, putting it in legal terms, has focused on the intersection between two sets of principles.
  2. The first are the principles which I sought to distil in Re C (A Child) (Suspension of Contact) [2011] EWCA Civ 521, [2011] 2 FLR 912, para 47, as follows:

    “• Contact between parent and child is a fundamental element of family life and is almost always in the interests of the child.

    • Contact between parent and child is to be terminated only in exceptional circumstances, where there are cogent reasons for doing so and when there is no alternative. Contact is to be terminated only if it will be detrimental to the child’s welfare.

    There is a positive obligation on the State, and therefore on the judge, to take measures to maintain and to reconstitute the relationship between parent and child, in short, to maintain or restore contact. The judge has a positive duty to attempt to promote contact. The judge must grapple with all the available alternatives before abandoning hope of achieving some contact. He must be careful not to come to a premature decision, for contact is to be stopped only as a last resort and only once it has become clear that the child will not benefit from continuing the attempt.

    • The court should take both a medium-term and long-term view and not accord excessive weight to what appear likely to be short-term or transient problems.

    • The key question, which requires ‘stricter scrutiny’, is whether the judge has taken all necessary steps to facilitate contact as can reasonably be demanded in the circumstances of the particular case.

    • All that said, at the end of the day the welfare of the child is paramount; ‘the child’s interest must have precedence over any other consideration.'”

  3. The most recent in-depth analysis of the case-law is to be found in the judgment of McFarlane LJ in Re W (Direct Contact) [2012] EWCA Civ 999, [2013] 1 FLR 494, to which we were referred. He drew attention to the decision of the Strasbourg court in Gluhakovic v Croatia (Application number 21188/09) [2011] 2 FLR 294, para 57, to the effect that obligation upon authorities, including the court, is not absolute and, whilst authorities must do their utmost to facilitate the cooperation and understanding of all concerned, any obligation to apply coercion in this area must be limited since the interests, as well as the rights and freedoms, of all concerned must be taken into account, and more particularly so must the best interests of the child.
  4. The other principles relate to case management. We were taken to my judgment in Re C (Family Proceedings: Case Management) [2012] EWCA Civ 1489, [2013] 1 FLR 1089, paras 14-15:

    “14 … These … are family proceedings, where it is fundamental that the judge has an essentially inquisitorial role, his duty being to further the welfare of the children which is, by statute, his paramount consideration. It has long been recognised – and authority need not be quoted for this proposition – that for this reason a judge exercising the family jurisdiction has a much broader discretion than he would in the civil jurisdiction to determine the way in which an application of the kind being made by the father should be pursued. In an appropriate case he can summarily dismiss the application as being, if not groundless, lacking enough merit to justify pursuing the matter. He may determine that the matter is one to be dealt with on the basis of written evidence and oral submissions without the need for oral evidence. He may, as His Honour Judge Cliffe did in the present case, decide to hear the evidence of the applicant and then take stock of where the matter stands at the end of the evidence.

    15 The judge in such a situation will always be concerned to ask himself: is there some solid reason in the interests of the children why I should embark upon, or, having embarked upon, why I should continue exploring the matters which one or other of the parents seeks to raise. If there is or may be solid advantage in the children in doing so, then the inquiry will proceed, albeit it may be on the basis of submissions rather than oral evidence. But if the judge is satisfied that no advantage to the children is going to be obtained by continuing the investigation further, then it is perfectly within his case management powers and the proper exercises of his discretion so to decide and to determine that the proceedings should go no further.”

  5. We were also taken to the observations of Wall LJ in Re H (Contact: Domestic Violence) [2005] EWCA Civ 1404, [2006] 1 FLR 943, para 106:

    “Of course, an experienced judge can cut corners and make substantive orders on short appointments. But if a judge is to take that course, he must be very sure of his ground, and demonstrate clearly that he has taken all relevant considerations into account.”

  6. The father’s case, as formulated by counsel then acting for him in the skeleton argument to which I have referred, can be summarised as follows:

    i) There was procedural irregularity: The essential argument is that Judge Brasse was wrong summarily to determine the application and to bring the proceedings to an end at a one-hour review hearing without hearing oral evidence from the parties, allowing cross-examination of the guardian and allowing the father to cross-examine the mother as to her alleged commitment to therapy. What he should have done, it is said, was list the matter for a further contested hearing on oral evidence. It is submitted that Judge Brasse went outside the permissible as contemplated in Re C (Family Proceedings: Case Management) and fell into the trap identified in Re H (Contact: Domestic Violence). Amongst a number of supporting arguments, it is pointed out that there had been no evidence from the parties, written or oral, since 2012. Stress is laid on the assertion that the potential consequence for Q of not making a child arrangements order is the loss of his relationship with his father.ii) Judge Brasse was wrong in bringing the proceedings to an end without making a child arrangements order: Given his own findings, he should have directed a section 37 report. He should have pursued the strategy he had set out as recently as January 2014 and again approved in June 2014. He failed to explain why he was departing so radically from a strategy so recently approved. In support of the argument that his decision was simply wrong, stress is understandably laid on the judge’s own findings, on the one hand damning of the mother, on the other hand, acknowledging the facts that contact presents no risk to Q, has almost always been positive for him and would be damaging for Q if terminated.

    iii) In the circumstances, and having regard to all these matters, the process has not been compatible with the father’s Article 6 and Article 8 rights.

  7. The father supplemented these legal arguments with his own powerful submissions that Q was growing up, as Judge Brasse recognised, in a household where he was being fed a completely distorted view of his father; that he (the father) had, unlike the mother, done everything asked of him; that Q was being denied a relationship not merely with his father but with his wider paternal family, and was thereby being denied that part of his heritage; and that the mother was selfishly motivated to monopolise her son. He said that he had never asked for Q to be removed from his mothers care. He submitted that the judge ought to have treated the mother as a vexatious litigant. The time had now come when the judge should have been prepared to consider a change of residence, at least until such time as the mother was prepared to facilitate contact. He asked us to remit the matter for a final hearing, with evidence


The Court of Appeal, however, felt that His Honour Judge Brasse had done the right thing in this case.


  1. In my judgment, Judge Brasse, faced with an almost impossible situation, took a course which was not merely open to him but which was, in reality, probably the only course that stood the slightest chance of achieving what was so pressingly needed – the resumption of Q’s relationship with his father.
  2. The judge was acutely conscious of the desperate position in which Q and his parents now find themselves. He was, rightly, unsparing in his criticism of the mother and unflinching in his analysis of the harm she was causing Q. But he was faced with what he realised was the reality, that the strategy he had hitherto adopted had not worked, in circumstances where, moreover, there was no reason to think that this strategy would work in future. He was realistic in his appraisal, securely founded in the materials before him, that any further attempt to enforce contact by force of law was almost bound to fail and, at the same time, be harmful to Q. He was, in my judgment, entirely justified in concluding that a further hearing, with or without a section 37 report, was most unlikely either to tell him anything he did not already know or to bring about any change in parental attitudes. He was sensible in thinking that therapy might achieve what all previous interventions had failed to achieve and justified in deciding that this was the best way forward. It was, after all, something that had been recommended in the past by Dr CL. He was plainly entitled to accept the advice of the Violet Mechett Clinic, as commended to him by the guardian, and repeated by Dr JP more recently, that therapy required a cessation of the proceedings.
  3. In my judgment, it is quite impossible for us to interfere with Judge Brasse’s decision. He was entitled to decide as he did and for the reasons he gave. Indeed, I would go further: I suspect that if I had been where he was I would have come to precisely the same conclusion.
  4. In my judgment, in deciding to proceed as he did, Judge Brasse was acting well within the latitude afforded him by the principles explained in Re C (Family Proceedings: Case Management) and he did not offend the principles set out in Re C (A Child) (Suspension of Contact). His decision to proceed as he did was not premature. He was not abdicating his responsibility to do everything in his power to attempt to promote contact. He was not abandoning the ongoing judicial duty to reconstitute the relationship between Q and his father. He was engaging with an, albeit non-judicial, method which he hoped might prove effective where merely judicial methods had failed. The very terms of his order, as I have set it out, show that he contemplated a future role for the court. I reject the complaint that there has been a breach of either Article 6 or Article 8.
  5. It was for these reasons that I agreed with my Lords that the appeal had to be dismissed.



In short that all legal solutions to the case which had a chance of working had been tried and had not worked, and the Judge was right to have looked outside of the legal system for a solution.

The Court of Appeal then delivered a very powerful message to the mother – let us hope that it did not fall upon deaf ears


I would not want the mother to think she has won. She has not. There are no winners here, only losers. Q is far and away the greatest loser – and that, in overwhelming measure, is because of his mother’s behaviour. I urge her again, as I urged her during the hearing, to reflect on Judge Brasse’s findings. They are an indictment of her parental failings hitherto. She, and Q, now stand at the cross-roads. It is vital, absolutely vital, that she participates, with Q and with the father, in the therapy which is at present their only hope for a happy future. I repeat what I said during the hearing. Sooner or later, and probably sooner than she would hope, Q will discover the truth – the truth about why he is not seeing his father, the truth about the harm his mother has done to him, the truth about his father, the truth that his father is not the monster he has been brought up to believe he is, the truth about, and the dreadful details of, the litigation. When he discovers that truth, what is his mother going to be able to say to him? How is she going to begin to justify her behaviour? She needs to think very carefully about how she is going to handle that day, not if but when it comes. Whatever she may think about the father, does she really want to imperil her future relationship with her son? Run the risk of being disowned by him? Run the risk of never seeing her own grandchildren? I urge her to think, long and hard, and to act before it is too late.



appeal – no contact, section 91(14) and judicial conciliation


Re T (A child) (Suspension of Contact) (Section 91(14) 2015 has some peculiar quirks, and one point which is probably important. It is a Court of Appeal decision, written by Cobb J.


When I give you this little extract about the father

We have read the e-mail from the director of Contact Centre A (dated 29 May 2014) to the child’s solicitor which describes the conversations thus:

“… [the father] has obsessively / repeatedly called our organisation in the last couple of weeks. On each occasion he was extremely abusive, consistently making racist remarks, intimidating and threatening staff …. It is evident that centre staff are scared by the experience of dealing with [the father] and further dealings or contact arrangements at [the contact centre] are likely to pose significant risks to both his child and the centre staff. For the above reasons, [the contact centre] is not in a position to facilitate supervised contact sessions between [the father] and his daughter”.


You might be somewhat surprised that, doing this appeal in person, he bowls four balls of appeal  (well, he actually put in 19 in his grounds, but the Court of Appeal kindly found him his best four) and three of them hit middle and off and get the result. One is considered wide, but that’s a strike rate to be proud of.   [Taking three wickets out of 19 balls is still pretty decent]


The litigation history here is dreadful


8. The multiple court hearings, and judgments and orders which have flowed from them, reflect an extraordinarily high degree of conflict in the parental separation. By the time the proceedings were listed before HHJ Hayward Smith QC on 12 December 2011, he expressed a concern that the case was “in danger of spiralling out of control”, a fear which has in our view regrettably all too obviously come to pass. Not only have the parents been in relentless conflict with each other, but the father has also raised repeated and serious allegations of professional misconduct against E’s court-appointed Guardian, against counsel instructed in the case at various times, and against some of the judges. Family related litigation was at one time unacceptably being conducted simultaneously in three family court centres in different parts of the country, and even when co-ordinated in one location, there has been a regrettable lack of judicial continuity (even though it had been explicitly acknowledged by many of the judges involved to have been “essential” to maintain firm and consistent management of the case).

  1. In our own review of the background history we recognised that there was a risk, by which in our view this experienced Judge allowed herself to be distracted, that the truly dreadful chronology of litigation, and the behaviours of the adults towards each other and the professionals, would divert attention from, and ultimately eclipse, the essential issue, namely E’s relationship with both her parents



Here are the four grounds of appeal, as polished up by Cobb J


i) Did judicially-assisted conciliation between the parties in respect of child arrangements for E (specifically E’s living arrangements and contact) at a hearing on 13 May 2014, disqualify the Judge from conducting a subsequent contested hearing on 3 July 2014?

ii) Did the Judge err in making substantive orders on 3 July 2014 (including a section 91(14) order restricting any application under section 8 CA 1989):

a) In the absence of the father?

b) On the basis of factual findings made without forensic testing of the documentary material, of some of which the father had no knowledge?


c) Having indicated to the parties that she would not conduct any hearing in relation to residence issues?

iii) In ordering the indefinite suspension of contact, did the Judge pay proper regard to section 1(1) CA 1989 and the statutory list of welfare factors (section 1(3) ibid.), and to the Article 8 rights of the father and the child, all of which were engaged in such a decision?

iv) Was the order under section 91(14) CA 1989 appropriate in principle, and/or proportionate?


We shall take these in turn

i) Did judicially-assisted conciliation between the parties in respect of child arrangements for E (specifically E’s living arrangements and contact) at a hearing on 13 May 2014, disqualify the Judge from conducting a subsequent contested hearing on 3 July 2014?


This arose because at a hearing where the issue was intended to be about whether the child could or could not go to a family wedding, but  father was advancing a case of a change of residence for the child (which was an argument with no prospect of success) the Judge moved into conciliation mode with a view to trying to broker an agreement.  This is an accepted model now, but what hasn’t been previously determined was whether a Judge who undertakes that conciliation approach (of trying to move the parties towards an agreement) is able to then make decisions in the case where agreement is not reached.

  1. The father’s application in relation to the wedding celebration was heard by HHJ Hughes QC on 13 May 2014; she refused the application. At the hearing, the Judge, entirely appropriately in our judgment, took an opportunity to conduct some in-court conciliation between the parties in an effort to break the deadlock on residence and contact. At that hearing, the following exchange took place between the Judge and the father (as recorded by the father, but which we do not believe to be challenged):

    Father: “Your Honour, can I ask that this is heard….? If you are going to hear this as a conciliation attempt then you cannot hear the hearing”

    Judge: “That is absolutely fine with me. I will not hear the hearing. I am trying to deal with this now.”

    At the conclusion of the 3 July 2014 hearing in delivering judgment (para [2]), the Judge characterised this exchange thus:

    “During the hearing the father accused (sic.) me of attempting to conciliate and suggested that I should therefore recuse myself”.

    The description of the manner in which the father challenged the Judge (an ‘accusation’) may reveal a little of the father’s tone of lay advocacy not revealed by a transcript.

  2. The father does not currently challenge the Judge’s assessment of the prospects of his case on residence, or her stance in advising him of them. She later described her conciliation attempt thus:

    “I suggested to him that an application for residence of [E] was actually not going to be very successful because he had not seen [E] for ten months, and he accepted that at the time.” (see transcript of the hearing on 3 July 2014).

    His account is similar:

    “It was agreed by all parties before HHJ Hughes on 13 May that the hearing regarding residence should be adjourned with liberty to the father to restore if and when he believed it appropriate to [E]’s interests … I accept that there are no realistic prospects of a Court allowing [a change of residence] at the present when there is no contact taking place. I accept that [E]’s residence in the immediate future is likely to be with her mother” (see father’s letter to the Court 2 July 2014).


This Judge did, however later go on to make an order that the father should have no contact with his child at all, and make a section 91(14) order that he be barred from making any other applications without leave of the Court.  Grounds 1 and 2 of the appeal therefore raise the questions  (1) COULD the Judge do this and (2) SHOULD the Judge have done this?


The Court of Appeal ruled that the Judge COULD conduct a conciliation style hearing AND then go on to conduct a traditional hearing resolving a dispute.

  1. We wish to emphasise that the facilitation of in-court conciliation at a FHDRA (or indeed at any other hearing in a private law children case) does not of itself disqualify judges from continuing involvement with the case, particularly as information shared at such a hearing is expressly not regarded as privileged (PD12B FPR 2010 para.14.9). Were it otherwise, the “objective” of judicial continuity from the FHDRA (where, as indicated above, conciliation may have been attempted in accordance with the rules) to the making of a final order (see PD12B FPR 2010 para.10) would be defeated. The current arrangement should therefore be distinguished from:

    i) Old-style conciliation appointments, which operated prior to the implementation of the ‘Private Law Programme’ in 2004, the predecessor to the CAP (see Practice Direction [1982] 3 FLR 448; Practice Direction: Conciliation – children: [1992] 1 FLR 228: i.e. “If the conciliation proves unsuccessful the district judge will give directions (including timetabling) with a view to the early hearing and disposal of the application. In such cases that district judge and court welfare officer will not be further involved in that application”.);ii) Non-court dispute resolution (by way of mediation / conciliation) conducted by professionals outside of the court setting: see Re D (Minors) (Conciliation: Privilege [1993] 1 FLR 932, Farm Assist Ltd (in liquidation) –v- DEFRA (No 2) [2009] EWHC 1102 (TCC)), and the Family Mediation Council Code of Practice for family mediators, paras 5.6.1 and 5.6.4;

    iii) A Financial Dispute Resolution (FDR) Appointment in a financial remedy case; the judge conducting such a hearing is not permitted to have any further involvement with the application, save for giving directions: see rule 9.17(2) FPR 2010. In a financial case, of course, the Judge is likely to have been armed to conciliate with the provision of all the privileged communications between the parties.

  2. Private law proceedings in the family court have become more than ever “inquisitorial in nature” (Re C (Due Process) [2013] EWCA Civ 1412[2014] 1 FLR 1239 at [47]) in large measure attributable to the overwhelming number of unrepresented parties who require and deserve more than just neutral arbitration; in such cases, particularly at a FHDRA or a Dispute Resolution Appointment, there is presented to the judge “a real opportunity for dispute resolution in the same way that an Issues Resolution Hearing provides that facility in public law children proceedings” (per Ryder LJ at [47] in Re C (Due Process)). We recognise that in exceptional cases, it is possible that a judge may express a view in the context of judicially-assisted conciliation which may render it inappropriate for that judge to go on to determine contested issues at a substantive hearing. Recusal would only be justified, we emphasise exceptionally, if to proceed to hear the substantive case would cause “the fair-minded and informed observer, having considered the facts, …[to]… conclude that there was a real possibility that the tribunal was biased”: see Porter v Magill, Weeks v Magill [2001] UKHL 67, [2002] AC 357, [2002] 2 WLR 37, [2002] 1 All ER 465, [2002] LGR 51.
  3. As we indicated at [18] above at the 13 May hearing the Judge enabled the father to recognise that his residence application was not currently likely to succeed; the father, for his part, appears to have accepted the judicial steer. We do not see why that indication on its own should at that stage of the case have caused the Judge to disqualify herself from maintaining case responsibility. It is not apparent that the parties took any position or made any other offer of compromise which would have given rise to any other potential conflict for the judge.


However, ground 2, the father immediately triumphs on the third part – the Judge having said at the conciliation style hearing that she would not go on to decide any contested matters ought not to have later done so.

ii) Did the Judge err in making substantive orders on 3 July 2014 (including a section 91(14) order restricting any application under section 8 CA 1989):

a) In the absence of the father?

b) On the basis of factual findings made without forensic testing of the documentary material, of some of which the father had no knowledge?


c) Having indicated to the parties that she would not conduct any hearing in relation to residence issues?


Starting with (c)

 The father was entitled to the view that the Judge had earlier given the impression that she would not herself deal with such issues, giving him ‘liberty to apply’ at the earlier (13 May 14) hearing. In short, in making these substantive orders (which directly impacted upon the father’s prospective residence claim), the Judge did, in our judgment, precisely that which she had told the parties she would not do. In this respect we have reluctantly concluded that the Judge materially fell into error, leaving the father with an understandable sense of grievance, and reaching a conclusion which is in the circumstances unsustainable.


On the other aspects of this ground, the Court of Appeal were content that father had had notice of the hearing and it had not been improper to proceed in his absence (a),  but that it had been wrong to proceed to make serious orders that he had not been put on notice about and to do it on ‘evidence’ which he had not been able to challenge

  1. However, the father’s absence was a significant factor which contributed to two material errors which in our judgment fundamentally undermine the integrity of the Judge’s conclusions:

    i) She made findings of fact on documentary material of which the father had no notice, and on which he had had no chance to make representations;ii) She made substantive orders fundamentally affecting his relationship with his daughter, and his access to the court, having previously told the father that she would not ‘hear the hearing’ of any such substantive application.

    In [39-41] and [42] we enlarge on these points.

  2. The judgment of 3 July 2014, and orders which flow from it, is predicated upon findings of fact which the Judge reached on written documentation (e-mails and position statements) which was not in conventional form (see rule 22 FPR 2010). We make no criticism of that per se, but consider that the judge should have cautioned herself about the possible deficiencies inherent in making findings in these circumstances, particularly where the evidence was not tested. She found that the father’s conversations with Contact Centre A displayed “a truly monstrous display of manipulation” yet the father’s written representations (dated 19 June and 2 July 2014), which she had apparently considered in reaching that conclusion, do not address this evidence in detail; indeed the father makes no specific reference at all in his submission to the e-mail from Contact Centre A (see [22] above). We cannot be certain that the father had even seen it.
  3. Of more concern, the Judge refers to, and appears to rely on as evidence of the father’s generally disruptive and belligerent conduct, an e-mail from a solicitor (unconnected with the case) who is reported to have overheard a heated conversation (“raised voices”) between the father and the Children’s Guardian following the 13 May 2014 hearing. The Judge at the 3 July 2014 hearing told those present that she “has no reason to distrust” the author of the e-mail, which she describes as “quite shocking”. Again, the father, so far as we can tell, was unaware of this evidence and had no opportunity to challenge it; the father had as it happens separately written to the Court complaining that after the 13 May 2014 hearing the Guardian had threatened to report the father to his local social services department, but the Judge does not bring in to her reckoning the father’s complaint.
  4. It also appears that the father had not received the Guardian’s report prior to the 3 July 2014 hearing; certainly he claims not to have seen it at the time he sent in his written representations to the court on the day prior to the hearing. We found no evidence that he had had seen the position statement of the child’s solicitor which (by admission) “went a little further” than the Guardian’s report/recommendation. The father had had no opportunity to comment on any of this material which rendered the judge’s conclusions, in our judgment, highly vulnerable.
  5. More significantly, at the hearing on 3 July 2014 the Judge made orders which went further than had previously been intimated, bringing to a formal end the father’s relationship with his daughter for the foreseeable future, and curbing his ability to pursue an application under section 8 CA 1989 in relation to her for many years.


So the appeal would be granted on this basis and sent for re-hearing.  The other two grounds were comfortably made out, that the judicial analysis of the circumstances that would warrant making an order that would mean father having no contact fell far short of what the law requires, and that the legal and procedural protections for a party when making a section 91(14) order had not been met.


In final summary, the Court of Appeal had this to say


  1. Conclusion
  2. No one should underestimate the challenges to family judges of dealing with cases of this kind. A number of experienced family judges have laudably tried different methods, alternately robust and cautious, to achieve the best outcome for E, but appear to have failed. While we are conscious that the case has presented significant management issues, largely attributable it appears to the conduct of the father, regrettably judicial continuity has not been achieved and this may have added to the faltering process.
  3. By allowing this appeal, we are conscious that we are consigning these parties to a further round of litigation concerning E; this is particularly unfortunate given the history of this case, and the inevitable toll which it is taking on all of the parties, evident from our own assessment of them in court.
  4. In remitting the case for re-hearing, we do not intend to signal any view as to the merits of the mother’s applications, or the likely outcome of the same. We are conscious that E has had virtually no relationship with her father for over half of her life; the Judge could not be criticised for observing, as she did, that a contact regime has thus far proved impossible to sustain. Our own summary of the relevant history above may demonstrate this sufficiently. However, given the life-long implications for E, her parents and family, of the orders which have been successfully challenged by this application and appeal, it is imperative that a proper determination is achieved, as soon as practicable, in order that fully-informed welfare-based decisions can properly be made in the interests of E.





Payne v Payne – rumours of my death have been much exaggerated


But now, it looks as though they are finally correct.

If you aren’t familiar with Payne v Payne, it was a Court of Appeal decision about a mother wanting to leave the country with a child and start a new life abroad. The Court of Appeal had provided a set of questions to be posed


“(a) Is the mother’s application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life?…. Is the mother’s application realistic, by which I mean, founded on practical proposals both well researched and investigated? …

(b) Is [the father’s opposition] motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive…What would be the extent of the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of the child’s relationships with the maternal family and homeland?…

(c) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?…”


You can see that those questions drive the Court in many cases to approve the mother moving to say Australia, even though the impact on the child’s relationship with father would be devastating.


Payne v Payne would have to go down as one of the least-loved decisions of the Court of Appeal, and occasional efforts are made by the Court of Appeal to backtrack from it – although with difficulty, because it would have needed a Supreme Court decision or a change in statute to do so categorically.


The usual efforts have been to create a new category of case to which Payne v Payne doesn’t apply.  And so many Court hearings are taken up with debate as to whether the case before the Court is a  “K v K” case, or a “Re Y” case or a “Payne v Payne” case   (and that taxonomic debate can have a huge bearing on the outcome)

“[60]. There is another lesson to be learnt from this case. Adopting conventional terminology, this was neither a ‘primary carer’ nor a ‘shared care’ case. In other words, and like a number of other international relocation cases, it did not fall comfortably within the existing taxonomy. This is hardly surprising. As Moore-Bick LJ said in K v K, “the circumstances in which these difficult decisions have to be made vary infinitely.” This is not, I emphasise, a call for an elaboration of the taxonomy. Quite the contrary. The last thing that this very difficult area of family law requires is a satellite jurisprudence generating an ever-more detailed classification of supposedly different types of relocation case. Any move in that direction is, in my judgment, to be firmly resisted. But so too advocates and judges must resist the temptation to try and force the facts of the particular case with which they are concerned within some forensic straightjacket. Asking whether a case is a “Payne type case”, or a “K v K type case” or a “Re Y type case”, when in truth it may be none of them, is simply a recipe for unnecessary and inappropriate forensic dispute or worse. It is to be avoided.”


For almost the entire time that Payne v Payne 2001 has been authority, Judges have been making speeches deprecating it and forecasting that it would be properly overturned.

In the snappily named   Re F (A child) (International Relocation Cases)(DF and NBF) 2015


The Court of Appeal overturn the decision of a Judge who had followed the Payne v Payne test and posed those questions in the judgment. Not because the case had been wrongly classified as a Payne v Payne rather than K v K or Re Y, but just because the Court of Appeal rule that the proper approach IN ALL Children Act cases is to follow the welfare paramountcy principle as the major factor, with adherence to the guidance given by the Courts in authority cases but never losing sight of the fact that the welfare paramountcy principle is, erm, paramount.

This is one of those cases that we are seeing a lot with the Court of Appeal as it is presently constructed  – the case before it is used as a vehicle to deploy new policy, rather than any real argument that the Judge in a particular case was “wrong”  instead it is the Court of Appeal using a particular case as a method of delivering a binding speech about policy for similar cases in the future.


I am not sure how a Judge could be “wrong” in considering, as this Judge did, all of the relevant authorities on relocation, applying those principles and answering within the judgment the questions that Judges are told to ask themselves and answer.   Any Judge could have been unlucky enough to be overturned on this, as the Court of Appeal had just been waiting for a good opportunity to put an end to Payne v Payne.



43. Reduced to the barest essentials the guiding principles and precepts are as follows. The welfare of the child is the paramount consideration. That is the only true principle. In deciding, in a case such as this, where a child should be located it is necessary for the court to consider the proposals both of the father and of the mother in the light of , inter alia, the welfare check list (whether because it is compulsorily applicable or because it is a useful guide) and having regard to the interests of the parties, and most important of all, of the child. Such consideration needs to be directed at each of the proposals taken as a whole. The court also needs to compare the rival proposals against each other since a proposal, or a feature of a proposal, which may seem inappropriate, looked at on its own, may take on a different complexion when weighed against the alternative; and vice versa.

  1. For the reasons given by my Lord, in the present case the judge’s reliance on the Payne v Payne criteria led her away from carrying out the necessary overall welfare analysis that was needed


If you are a proper law geek and you are wondering how the Court of Appeal can strangle Payne v Payne when it was a Court of Appeal decision and stare decisis applies  (i.e the Court of Appeal is bound by Court of Appeal decisions unless the Supreme Court or statute changes), then here is the answer



  1. The ratio of the decision in Payne was more nuanced in the sense that the questions were always intended to be part of a welfare analysis and were not intended to be elevated into principles or presumptions. Regrettably that is not how they were perceived and the best intentions of the court were lost in translation. The caution expressed by Dame Elizabeth Butler-Sloss P in Payne went unheeded, namely that guidance that had been derived from authorities such as Poel v Poel [1970] 1 WLR 1469 was being expressed in “too rigid terms” and ‘unduly firmly’ with an over emphasis on one element of the case. I respectfully agree with her and with the benefit of hindsight the continued use of the Payne guidance by courts without putting it into the context of a welfare analysis perpetuated the problem.
  2. Furthermore, in the decade or more since Payne it would seem odd indeed for this court to use guidance which out of the context which was intended is redolent with gender based assumptions as to the role and relationships of parents with a child. Likewise, the absence of any emphasis on the child’s wishes and feelings or to take the question one step back, the child’s participation in the decision making process, is stark. The questions identified in Payne may or may not be relevant on the facts of an individual case and the court will be better placed if it concentrates not on assumptions or preconceptions but on the statutory welfare question which is before it, to which I will return in due course.
  3. The approach which is now to be applied could not have been more clearly stated than it was in Re F where Munby LJ said at [37] and [61]:

    “[37] There can be no presumptions in a case governed by s 1 of the Children Act 1989. From the beginning to the end the child’s welfare is paramount and the evaluation of where the child’s interests truly lie is to be determined having regard to the ‘welfare checklist’ in section 1(3)”

    “[61] The focus from beginning to end must be on the child’s best interests. The child’s welfare is paramount. Every case must be determined having regards to the ‘welfare checklist’, though of course also having regard, where relevant and helpful, to such guidance as may have been given by this Court”



For those, such as Ian (Forced Adoption) who are not fans of the word ‘holistic’, there’s a bit at the end of the judgment where McFarlane LJ who has inadvertenly popularised the term rather deprecates its overuse (and misuse). He points out that it is not a new or novel creation, but a restoration of the way that the law had worked and decisions HAD been made before a “linear method” had taken hold and moved us away from a proper practice of looking at the whole of the relevant evidence and issues and making a decision that was in the child’s best interests.


  1. The word ‘holistic’ now appears regularly in judgments handed down at all levels of the Family Court. This burgeoning usage may arise from my own deployment of the word in a judgment in Re G (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 965; [2014] 1 FLR 670 where, at paragraph 50, I described the judicial task in evaluating the welfare determination at the conclusion of public law children proceedings as requiring:

    i. ‘a global, holistic evaluation of each of the options available for the child’s future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child’s welfare.’

  2. Having heard argument in this and other cases, I apprehend that there is a danger that this adjective, and its purpose within my judgment in Re G, may become elevated into a free-standing term of art in a way which is entirely at odds with my original meaning.
  3. In the judgment in Re G my purpose in using the word ‘holistic’ was simply to adopt a single word designed to encapsulate what seasoned Family Lawyers would call ‘the old-fashioned welfare balancing exercise’, in which each and every relevant factor relating to a child’s welfare is weighed, one against the other, to determine which of a range of options best meets the requirement to afford paramount consideration to the welfare of the child. The overall balancing exercise is ‘holistic’ in that it requires the court to look at the factors relating to a child’s welfare as a whole; as opposed to a ‘linear’ approach which only considers individual components in isolation.
  4. Reference to ‘a global, holistic evaluation’ in Re G was absolutely not intended to introduce a new approach into the law. On the contrary, such an evaluation was put forward as the accepted conventional approach to conducting a welfare analysis, as opposed to a new and unacceptable approach of ‘linear’ evaluation which was seen to have been gaining ground.
  5. In the context that I have described, it is clear that a ‘global, holistic evaluation’ is no more than shorthand for the overall, comprehensive analysis of a child’s welfare seen as a whole, having regard in particular to the circumstances set out in the relevant welfare checklist [CA 1989, s 1(3) or Adoption and Children Act 2002, s 1(4)]. Such an analysis is required, by CA 1989, s 1(1) and/or ACA 2002, s 1(2) when a court determines any question with respect to a child’s upbringing. In some cases, for example where the issue is whether the location for a ‘handover’ under a Child Arrangements Order under CA 1989, s 8 is to take place at MacDonalds or Starbucks, the evaluation will be short and very straight forward. In other cases, for example a case of international relocation, the factors that must be given due consideration and appropriate weight on either side of the scales of the welfare balance may be such as to require an analysis of some sophistication and complexity. However, whatever the issue before the court, the task is the same; the court must weigh up all of the relevant factors, look at the case as a whole, and determine the course that best meets the need to afford paramount consideration to the child’s welfare. That is what, and that is all, that I intended to convey by the short phrase ‘global, holistic evaluation’.




Note also that whilst Ryder LJ emphasises and endorse the ‘balance sheet’ approach of the Court having a tabular document setting out the pros and cons of each option, McFarlane LJ deprecates that

Finally I wish to add one further observation relating to paragraph 29 of Ryder LJ’s judgment where my Lord suggests that it may be helpful for judges facing the task of analysing competing welfare issues to gain assistance by the use of a ‘balance sheet’. Whilst I entirely agree that some form of balance sheet may be of assistance to judges, its use should be no more than an aide memoire of the key factors and how they match up against each other. If a balance sheet is used it should be a route to judgment and not a substitution for the judgment itself. A key step in any welfare evaluation is the attribution of weight, or lack of it, to each of the relevant considerations; one danger that may arise from setting out all the relevant factors in tabular format, is that the attribution of weight may be lost, with all elements of the table having equal value as in a map without contours.


It will not amaze anyone to know that I am firmly with McFarlane LJ on this.  A balance sheet approach can easily distort a case  – you could produce a table that has 2 cons and 14 pros, but the cons could outweigh the pros because of the weight attached to those two things, whereas some of the pros could be fairly trivial in significance. A visual image of a table with 2 cons and 14 pros, however, is going to lead to an impression that the option is desireable and that the balance is firmly in its favour.


As the third Judge, Clarke LJ merely says this, in relation to the weighing up exercise

The court also needs to compare the rival proposals against each other since a proposal, or a feature of a proposal, which may seem inappropriate, looked at on its own, may take on a different complexion when weighed against the alternative; and vice versa.


the issue of whether Balance Sheets are, on balance, good or bad, remains a live issue to be resolved.


“Just glanced?” Court of Appeal find Judge to have been unfair


Re G (child) 2015 was an appeal from a finding of fact hearing in private law proceedings conducted   (perhaps that ought to be in inverted commas) by Her Honour Judge Pearl.


The appeal was on the basis of judicial bias/ unfairness, which as I’ve set out before has a relatively low bar in law  (that a reasonable observer would have concluded that the Judge was biased) but in practice is hard to pursuade an Appeal Court of, since most people who leave Court without the order they wanted tend to think that a Judge was biased.


Here the case was made out, in spades.   [Though not necessarily in terms of the Judge being in favour of one party and against the other, but rather that her treatment of mother’s case was sufficiently unfair to prejudice a fair hearing]

Things began badly when Ms Toch, the mother’s counsel, arrived late at Court on the first day. The context of this was that exceptional weather conditions had disrupted all transport on that day. Ms Toch apologised, but the Judge seemed to take it as a personal slight and had not been able to move on.


  1. The first specific complaint was that the judge impolitely told counsel off for her late arrival at court on the first day of the fact finding hearing, 28 October 2013. It was submitted that Ms Toch had been subjected to unwarranted and unfair criticism about this and that this was of concern to the mother as it was obvious to her that the judge was annoyed with her counsel. Other specific instances were identified where it was said that the judge’s attitude towards Ms Toch was disparaging and bore the mark of hostility or unfairness. One example was in relation to the way in which the judge dealt with Ms Toch over the CAFCASS officer but attention was invited to the way in which the judge dealt with Ms Toch over other matters as well.
  2. It is essential to consider the exchanges that preceded the commencement of the evidence in the case as a whole. The hearing got off to a difficult start on the morning of Monday, 28 October. There had been a powerful storm the previous night with damaging winds. Transport services were severely disrupted and Ms Toch had problems in getting into central London for the hearing. Ms Toch’s account in her statement is that, on the witness template, the morning had been scheduled for the judge to read. It has not been possible to find out whether that was anyone else’s understanding. Ms Toch’s account is that she was told by her clerks on the Monday morning that the judge wished to sit at 11.45 a.m.. Because of her travel difficulties, Ms Toch did not arrive until 12.20 p.m. which made her late for this and meant that she had not been able to discuss matters directly with counsel for the father before the case started. The transcript of the proceedings opens at C3 with Ms Toch apologising to the judge for delaying the court. She explained about the limitations on transport from her home area that morning and the steps she had had to take to get to court.
  3. Matters moved on but it can be seen from the transcript that Ms Toch’s lateness continued to trouble the judge for some time and that she returned to it later. I will deal with this at its appropriate place in my consideration of this stage of the hearing.



The Court of Appeal are not kidding.  To get a flavour of it, see this exchange


It is not difficult to accept that the mother’s confidence in her counsel’s ability to put forward her case to the judge would have been undermined by the judge’s approach to Ms Toch as set out above. It is also, perhaps, of note (although it cannot affect the fairness of the fact finding hearing) that matters were not easy at the hearing on 7 January 2014 either. By way of example, Ms Toch said to the judge, in relation to the mother’s evidence about the dowry question, “Your honour subsequently looked at these matters and made a finding.”. The judge responded:

“THE JUDGE: Looked at them?

MS TOCH: Your honour has….Yes.

THE JUDGE: Just glanced?

MS TOCH: No, your honour.

THE JUDGE: I have analysed them. I have spent hours on this case…..I have gone through every line of the evidence. I have not just looked at it, Ms Toch. I take that as a straight insult.”



Oh boy. And again



“THE JUDGE: Do you think it is fair that a CAFCASS officer should stop contact completely without even speaking to the father about a matter of fact? Do you think that is the way to proceed?

MS TOCH: Well, of course, he did not. He raised this. He referred the matter to Social Services to investigate and the matter was referred to the court and the court stopped contact. It was not the CAFCASS officer.

THE JUDGE: But he recommended that contact be supervised.

MS TOCH: He wrote a letter to the court to say that contact should be suspended pending the outcome.

THE JUDGE: Do you think that is a fair way to proceed?

MS TOCH: Well, it was referred to the court, so it is a matter for the court.

THE JUDGE: Do you think –

MS TOCH: It is a matter for the court.

THE JUDGE: We are not going to get –

MS TOCH: I am sorry.

THE JUDGE: This is the second time we have had a conversation like this.


THE JUDGE: If I ask a question, try and answer it please.

MS TOCH: The CAFCASS officer did not suspend contact and contact was ordered to be supervised by HHJ Everall –

THE JUDGE: Do you think it is right –

MS TOCH: – on submissions.

THE JUDGE: Do you think this man’s evidence on a finding of fact is going to assist me?

MS TOCH: I am not saying it will.

THE JUDGE: Yes or no?

MS TOCH: I am not asking for him. I am saying he is available. I understood the father wished to have him.

THE JUDGE: Well, you have just asked the question [of the father’s counsel]. He said he does not want him to be cross-examined.

MS TOCH: And I have heard that, so unless the court wishes him, I do not.


MS TOCH: I am not calling him. Am I clear?

THE JUDGE: No, I know.

MS TOCH: I am not calling him.

THE JUDGE: Let us try and have an exchange, shall we?


THE JUDGE: All right. You have made me angry.

MS TOCH: I am sorry.

THE JUDGE: The second time. This morning I was asking questions. You simply were not answering the questions.

MS TOCH: I am sorry.

THE JUDGE: You must answer my questions.

MS TOCH: I will, yes.

THE JUDGE: Are you going to ask me to rely on this CAFCASS officer’s finding or understanding of the truth as part of the evidence I rely upon to substantiate your client’s allegation of the stabbing? Yes or no?


THE JUDGE: Thank you.

MS TOCH: I am terribly sorry. I did not mean to be –

THE JUDGE: I am so grateful to you.


THE JUDGE: No, you do mean to be because this is the second time you have done it and it does not work with me. You are not relying on his assessment of this child’s veracity. You are only relying on the fact that it was said. The father does not deny it was said and you are not going to come towards me at the end of the hearing and say, ‘Because the CAFCASS believed it, your honour, you must believe it.’


THE JUDGE: All right. Do you think it was bad judgment for him to recommend that contact be suspended?


THE JUDGE: Yes or no?

MS TOCH: It was correct judgment to have the matter investigated as it was.

THE JUDGE: This is going to be a difficult hearing.

MS TOCH: I am sorry. I do not think my opinion is important, with respect. He made the recommendation. It came before the court.

THE JUDGE: Look, I do not want to stop a witness coming to court and then meet submissions from you –

MS TOCH: I am not going to make those submissions, if I make that plain.

THE JUDGE: Yes, good.


THE JUDGE: So that has taken ten minutes. No counsel this morning at all and ten minutes and I am not being unreasonable about this.”


[Erm, I think perhaps you were]

I feel Ms Toch’s pain there. I’ve had, some considerable years ago, that sort of experience, though only about a quarter as bad as that. If I say to practitioners “Humpty Dumpty” some may have a shudder of recognition and repressed memories flood back. There is very little worse than being in front of a Judge and feeling that every single word you say is just making the Judge more cross.

If you are remembering the Liverpool Judge and the Court of Appeal ruling that a judicial appointment was not a licence to be rude, you are on the right lines here.


As the Court of Appeal say, one does not pick up tone of voice from a transcript of judgment.

What is not apparent from the transcript is the judge’s tone of voice. I need only say that listening to the recording did nothing to improve the impression gained from the written word.


There are many, many, more examples of this from the trial. Immediately after this, the Judge castigates Ms Toch for being late again.

The pressure on Ms Toch continued immediately after the passage that I have set out above with the judge returning to the subject of Ms Toch’s lateness as follows (C25):

“THE JUDGE: Everybody knew – let me be clear about this – there were going to be no trains this morning. It was very, very clear on the national media. Everybody knew. It was absolutely clear and I changed my travel plans accordingly, as did everybody else. Everybody knew and if I had been living in [counsel’s home town in Kent], I would have made plans to avoid this disaster this morning. Be utterly clear about that.

MS TOCH: Yes. I can only apologise to the court. I did try. I really did try.

THE JUDGE: Well, I hope you have apologised to your client.

MS TOCH: I apologise to everybody in this court that has been inconvenienced.

THE JUDGE: Everybody knew that there were going to be no trains this morning.


THE JUDGE: So why you sat in [counsel’s home town] last night waiting for there to be no trains, I do not know. It is ten to three and we have not even started –

MS TOCH: I am so sorry but sometimes people cannot leave the night before and I could not. ….”


How is the mother supposed to feel about whether she is getting a fair trial at this point? The Judge is outright quarrelling / bullying her representative at this stage.

  1. It was unnecessary, in my view, for the judge to have returned to this question at this stage in the proceedings and, as I see it, the exchange compounded the pressure that had been put on Ms Toch by what had just occurred in relation to the CAFCASS officer. My experience is that counsel tend to manage to be on time for court against even formidable odds but sometimes it simply is not possible. The weather conditions on this weekend in October were extraordinary and disruptive of transport. As Ms Toch observed to the judge, sometimes it is not possible for counsel to set off the night before. There are various reasons for this, ranging from domestic commitments to an inability to obtain accommodation overnight or to pay for it from a brief fee which was not designed for that eventuality. Ms Toch told the judge of the steps that she had taken to get round the problems on the morning of the hearing, she got herself to court as soon as she could, and she apologised. It is understandable that the judge felt frustrated by the loss of time that could otherwise have been devoted to discussions between counsel or other arrangements outside court or to getting the hearing underway. It is clear that it was going to be a challenge to conclude the evidence and submissions within the allotted court time, even without delays of the kind that had occurred and that always poses difficulties for a judge. However, I accept the submission of Mr Phillips that she laboured the issue of Ms Toch’s lateness to the point of unwarranted, unfair criticism.
  2. Taking the whole of the exchange about the CAFCASS officer and the lateness together, I also accept the submission that the mother would have felt that the judge was annoyed with her counsel and that this annoyance influenced the judge’s approach to her case and impeded the presentation of it by counsel on her behalf.


The Court of Appeal did determine that the Judge’s management of mother’s cross-examination did not cross the line and that a Judge is entitled to have their own approach to such matters providing that the line is not crossed


  1. It was shortly after the CAFCASS/lateness exchange that the mother began to give evidence. Complaint was made of the judge’s approach to her during her cross-examination which it was argued was hostile and distressing to the mother. Managing a trial can be a challenging, even for an experienced judge, and it is sometimes necessary to react without much time for refined consideration. Generous allowance always has to be made for this and also for the fact that, even with counsel’s help, it is very difficult to tell from a transcript, or even from listening to a recording, precisely what was going on at all stages during the hearing. Furthermore, different judges have different styles and counsel and litigants can usually be expected to cope with the talkative, the uncommunicative, the robust, and even the irritated judge, provided the judge’s behaviour does not stray outside acceptable limits.
  2. In this case, I see the judge’s handling of the mother’s cross-examination as being within normal tolerances. True it is that the judge asked the mother on occasions to stop interrupting her, but that was not unjustified as the mother did tend to interrupt questions put to her and talk over people. Nor, in my view, would it be right to criticise the judge for speaking to the witness about being on oath or for requiring her to stand up, which was likely to have been done in an effort to control the process and possibly also in order to hear better. I note also that when the mother was upset following some questioning by Mr Cameron (C104/5), the judge asked if she had hankies and offered her a short break.


However, the judicial approach to Ms Toch’s cross-examination of father did cross that line on occasions.


Mr Phillips’ summary in his Schedule of the position with regard to the second day of Ms Toch’s cross-examination was that between C221 and C279 (which was essentially the end of it), it was difficult to find a single page where there had not been interventions by the judge. The fairness of a hearing cannot be assessed scientifically or mathematically but, seeking for some way in which to look at matters as a whole and to pin down impressions, I counted the entries against the names of the judge, Ms Toch and the witness in the first thirty or so pages of transcript of the resumed cross-examination, starting at the foot of C216 which was the nominal start of it. By the middle of C247, the judge had spoken 250 times, Ms Toch had spoken 227 times and the witness had spoken 140 times, only 64 of them in response to a question from Ms Toch. Between C251 and C258, there was quite a concentrated period of cross-examination, during which the judge spoke only 18 times. However, it was then a further nineteen pages before Ms Toch was able to cross-examine continuously again, although during those nineteen pages there was considerable questioning of the father by the judge, for example for three full pages between C259 and C261. Ms Toch resumed continuous questioning at the foot of C277 but at the foot of C279 Mr Cameron intervened to remind the court that a witness was waiting outside court and that was effectively the end of the cross-examination.




  1. By C194, Ms Toch’s cross-examination had turned to the issue of who was the primary carer for G and, shortly thereafter, also incorporated questioning going to the father’s allegations about the mother drinking, about which he was seeking a finding of fact. The judge’s second prolonged intervention came in the course of this at C197 when she said to Ms Toch, “Are you going to ask him about these serious allegations that are being made?” and slightly later, “I am just wondering when we are going to start on the case that your client is making.” The judge then explored with counsel for some time, in the presence of the witness, what the underlying material was to support the mother’s case about gambling and domestic violence, wondering aloud to counsel “whether we are using the time efficiently” (C201). This passage ended with the father putting up his hand to contribute to the discussion and doing so at the foot of C201.
  2. When Ms Toch resumed her cross-examination of the father the following day (C216), it is apparent that she was intending to deal with the question of domestic violence. I have already referred to the number of contributions made by the judge, Ms Toch and the father respectively during this period but I now return to look more closely at the nature of some of these, albeit that I will not go through every matter of complaint. It is perhaps relevant that the day began with the judge criticising both counsel over Mr Cameron having spoken to his client whilst he was in the course of giving his evidence. The criticism was first directed to Mr Cameron, whom the judge said she felt like reporting, but then widened to include Ms Toch as well because she was thought to have agreed to what Mr Cameron had done. The judge said that she would decide in due course what action she was going to take about this (C215).


By this point, the Judge was giving it both barrels to both counsel.  Could it be argued that if a Judge is hostile to both parties, that any judicial bias evens itself out? Nice try…


  1. As I have said, the fairness of a hearing cannot be assessed mathematically or scientifically. Nor is it dependent on a comparison between the way in which the judge has treated the two sides. If one party has been treated in such a way as to disable him or her from advancing his or her case properly, the hearing is not rendered fair by the fact that the other party has been treated equally unfairly. For what it is worth, however, a comparison of the quantum of intervention by the judge on the second day of each counsel’s cross-examination of the other party shows, I think, that Mr Cameron was rather less hampered than Ms Toch.
  2. It is necessary to look not only at the quantum of the judge’s interventions but also at their nature. As Mr Turner submitted on behalf of the father, a litigant does not have an unrestricted right to present a case in such a way as he or she or his or her lawyers may choose. A judge sometimes has no choice but to intervene during the evidence because of the nature of the questioning or in order to manage the use of court time (as the father would submit was necessary here). Furthermore, the interventions can sometimes be a help to counsel in his or her questioning rather than a hindrance


And so the appeal on unfairness was comfortably made out.

The Court of Appeal did try to soften the blow


  1. Before I come to what I would see as the consequences of my conclusions, there are a number of things that need to be said. The first is that I am very much aware of the pressures that there are on the family justice system and upon the hard-pressed and very hard-working judges in the Family Court who must ensure that the court’s limited time is used to the best possible effect. This inevitably means that family judges have to manage hearings before them robustly and this requires intervention at times. The hand of fate, in this case in the form of the disruption caused by the storm, can sometimes make the judge’s task almost impossible. The second is that I am deeply conscious of the fact that the one person from whom this court has not heard is the judge, who would no doubt have had much that she could valuably have contributed to the evaluation of the process. I have done my best to make allowances for this and I have thought long and hard about which side of the line of fairness the hearing in this case fell. The third is that the case is not about Ms Toch and whether she was treated fairly, although she has been mentioned frequently in this judgment. It is about whether the mother was given a fair chance to put her case and Ms Toch was simply one means by which she sought to do so, hence the need to look at the exchanges between the judge and Ms Toch.
  2. In my view, it would be a necessary result of my conclusions that the findings of fact made by the judge would have to be set aside. I would return the matter to the Family Court for there to be a directions hearing, in front of a judge other than Judge Pearl, to examine whether it is now necessary for new findings of fact to be made. It may not be, because the situation for this family has moved on considerably since the events with which we have been concerned. For this same reason, it is not necessary for me to go into the points taken against the orders made by Judge Pearl other than her findings of fact. They have all been overtaken by later orders or other developments.
  3. I would therefore allow the appeal to the extent that Judge Pearl’s findings of fact are set aside and the matter is remitted to the Family Court for further directions.

Private law, infinite appeals and IT naughtiness

The case of Re N (Children) 2015, involves a private law case with 3 children, aged 11, 9 and 6.   Her Honour Judge Atkinson had to deal with a novel and delicate point of law on an appeal.

The children all live with their mother, and the dispute has been about the time that they spend (or do not spend) with their father.

In this case, the mother made a series of very serious allegations against the father, of physical abuse. The father faced criminal trial for these and was acquitted.  the mother then sought findings against him in the family court proceedings.  That was complicated by the last minute addition of a rape allegation.

In any event, the District Judge who heard the case dismissed all but one of the allegations, which he found was proved in part. The finding that was made would not have been a barrier to contact, and really contact should have resumed.

However, mother then appealed that decision, and the appeal was unsuccessful.

She then made a subsequent appeal, and it is that subsquent appeal that gives the case its novelty.  I am not naming the DJ here – it is in the linked judgment if people want to see it, but I took a call that the interest in the case is in the legal issue rather than any naming and shaming of the DJ himself.


  1. On 17th March 2015 District Judge B was removed from judicial office following an investigation into an allegation that he had viewed pornographic material on judicial IT equipment in his office. The material did not include images of children or any other illegal content. However, this was considered to be an inexcusable misuse of his judicial IT account and “wholly unacceptable conduct for a judicial office holder”.
  2. On 18th March, together with an enquiry as to the progress of their application for an oral hearing, solicitors acting for the mother wrote to the court lodging a fresh ground of appeal based on the fact of DJ B’s dismissal and its apparent association with sexual matters. Ground 10 argued his lack of judgment, as demonstrated by his dismissal, and argued that the pornography added a sexual element to that lack of judgment directly relevant to the issues that he had tried in this case.


The case got still more complicated, because at the appeal, mother sought to withdraw the appeal – not because she accepted DJ B’s findings but because she had realised that there was a finite pot of money for her legal representation and if she went ahead with the appeal there would be little or none left for the remainder of the proceedings.   (Grounds 1-9 here were the ones that had previously been rejected in the previous appeal, ground 10 was the “as the Judge has been sacked for viewing pornography, his judgment is questionable and he was not someone who ought to have been dealing with sexual allegations” angle)


  1. So it was that on 11th June 2015, 6 months on from the decision made by DJ B that there was no evidential basis for the assertion that this father has been the perpetrator of violence or sexual abuse against the mother or violence against the children, the mother’s appeal was listed before me to hear. On the day before the hearing the mother’s representatives contacted the court and the father’s representatives stating that she intended to withdraw her application for permission. They asked for the case to be vacated and directions made to enable the matter to proceed as directed by DJ B. The father’s team, shocked by the sudden turn of events refused to agree the vacation of the hearing and the parties nevertheless appeared before me.
  2. I note that the mother does not retract these allegations. Nor does she state that she is accepting of the findings made. Her main motivation in withdrawing from the appeal is cost – not that she will be saddled with a bill of costs but rather, she risks not having enough left in her publicly funded pot to continue to be represented after the appeal has been concluded. A secondary consideration was, it would seem, the “welfare of the children” and the impact upon them of this continuing litigation. Unsurprisingly, the father expressed his concern that if given simple permission to withdraw her appeal then these allegations would almost certainly surface to be litigated again in some form or other.
  3. Accordingly, although I have decided to give permission for the mother to withdraw her application for an oral hearing in relation to Grounds 1-9, I have decided to do so only after I have made a decision on Ground 10 effectively as I would have done on the papers. By this means there will have been a merits based decision recorded on each of the Grounds.



That, I think, was a good call. It would otherwise have always been hanging over the case.  In case anybody else is envisaging an appeal on similar grounds to Ground 10, this might pour some cold water on it



  1. Ground 10
  2. I turn now to the additional Ground which reads as follows: “the decision of the DJ in this matter related to various matters of a sexual nature…

    it demonstrates the poor exercise of Judgment in relation to matters of a sexual nature…it demonstrates poor exercise of judgment more generally…justice has to be seen to be done and the public would have no confidence in this DJ dealing with a matter of a sexual nature”

  3. The skeleton argument develops two arguments between paragraphs 88 and 93:

    a. The removal of the District Judge from office demonstrates that he had conducted himself in a manner inconsistent with the high standards of judicial office expected of the judiciary and shows a lack of judgment which is undermining of his decision making generally;

    b. The sexual nature of the behaviour leading to dismissal demonstrates that his judgment in “matters of a sexual nature has been found to be impaired” and the public cannot be expected to have confidence in his decision making as a result.

  4. I give permission to appeal only if I consider that there is a real prospect of success or there is another compelling reason why the appeal should be heard. To succeed on the substantive appeal the mother will need to show that the DJ was wrong or that the decision is unjust by reason of some other serious procedural or other irregularity in the proceedings.
  5. I have now read all of the papers lodged in what was to be an oral application for permission. I have not heard oral argument and so the decision which follows is effectively made on the papers but on a considerable body of paper. I am quite satisfied that the appeal on Ground 10 has no reasonable prospect of success and indeed I consider it to be without merit. I will explain why.
  6. The lack of judgment arguably demonstrated by the District Judge through misconduct in his office does not necessarily infect all areas in which he has to exercise Judgment. District Judge B was dismissed because of inappropriate use of judicial IT. It does not follow that he has thereby demonstrated himself incapable of making a proper judicial decision. If it did it would mean all of his decisions would be null and void following his dismissal. That simply is not right.
  7. The argument does not become different or stronger simply because his misuse of judicial IT involved the watching of pornography. In the first place it is important to note that he was not dismissed for viewing pornography. In any event, the viewing of pornography does not of itself suggest that he would have disbelieved an allegation of rape. It does not suggest that his approach to the sexual element in this case would be in any way skewed or biased. Had he been viewing such material in the privacy of his own home that would not have rendered him unable to make a determination in the case.
  8. The best way to determine whether District Judge B carried out a proper judicial exercise of discretion is by examining the detail of his Judgment. I have done just that and the transcript reveals a Judgment that is in my assessment beyond complaint. It contains all necessary directions on the law. It gives full and detailed reasons as to why he found the evidence of the mother lacking and why she failed to establish her case to the appropriate standard. As I have already rehearsed, the mother has been unable on the papers (in spite of the numerous and voluminous skeleton arguments in support of her appeal) to establish any basis for criticism.
  9. Accordingly, I find there is no basis for the granting of permission in relation to Ground 10.



Where you might, I suppose, have stronger grounds for appeal is for example if the decision-maker in an Employment case where the allegation against the employee was illicit use of IT for this purpose and the decision-maker had found in favour of the employee  (where you’d be wondering whether the decision was a ‘kindred spirit’ / ‘there but for the grace of God’ scenario)


[It does occur to me that if you are a Judge doing nothing but private law conflicts, where you are just hearing people say “no” all the time, one can perhaps see why DJ B wanted to just listen to people saying “yes yes yes oh yes” once in a while]


There’s a rather sad postscript to the judgment

  1. Finally, the mother at this hearing indicated her desire to move on from these matters and look forward. She expressed a willingness to be guided by professionals. I was encouraged by that until it became clear that the professionals that she has put her trust in are currently limited to Norfolk County Council, specifically the author of the s.37 report, who has advised against face to face contact between the children and their father with no clear plan as to how this situation can be improved.
  2. It was made clear at the hearing that the Guardian may not be of the same view. Disappointingly, it was far from clear that if that be the case this mother will be accepting of the Guardian’s advice. I felt it necessary to record this position as a post script to this Judgment.
  3. The court has determined that there is no evidential basis for the allegations made against the father by the mother. He has been through two Crown Court trials and one trial of the facts in the family court. Six months have been wasted on an unmeritorious appeal. Meanwhile these children have not seen their father now since November 2011. If the mother’s concern is for the welfare of her children as she has insisted then going forward she will have as her aim how she can best assist these children in re-establishing their relationship with their father


contact handover at Manchester airport


Contact handovers are often pretty fraught affairs. Getting through airport security and getting on a plan can also be a pretty fraught affair.  If you combine the TWO, AND you have one person who is more than happy for the children not to get on the plane and who has got there as late as possible, that’s a toxic combination.


Re P (A child :Enforcement of contact order) 2015


The reason for the airport is because the father lives in Sweden, and he comes to England to collect the children and then take them to Sweden for his contact.  As the Judge remarked, the fact that he had made 37 flights to England in a year was illustrative that he was committed to spending time with his children.

  1. The events of 22nd May 2015
  2. The flight booked for the children and father to fly to Sweden left from Z Airport at around 6:30pm. Boarding closed at 6:10pm. The father was waiting at an agreed place at the airport and began sending texts enquiring as to the children’s late arrival from about 5:00pm. The father indicates, and the mother accepts, that she generally arrives at about 5:40pm. She insisted that a 5:40pm arrival was entirely realistic for a 6:30pm flight. In any event, the mother told me she could not be any earlier as she and her husband had to collect the children from school at 3:30pm, arrange for them to change and then to drive from school to Z Airport. She complained that the father should have booked a later flight. I accept his evidence that such a flight would involve changing planes, for example, at Copenhagen and this was the latest direct flight from Z Airport.
  3. However, on this occasion and contrary to her evidence to this effect, the mother did not even arrive at 5:40pm. It may be that she was in the vicinity of the airport at 5:40pm, but it is clear from the texts sent by the father at that point in time, which he was able to produce, asking where she was, that she was not at the agreed meeting point. I accept the father’s evidence that she arrived around 6:00pm. By this stage, the father was highly and rightly anxious about missing the flight since he and the children still had security and passport control to navigate in a large, busy airport. I find that this is the pattern for the handover at the airport with the children and father usually having to run so as to avoid missing their flight. I reject the mother’s insistence that, “They were not too late. They still had half an hour to board the plane.” My sense was that the mother was resentful as to the detail of the arrangements, was not troubled by her late arrival and was making no effort to facilitate the speedy handover of the children, saying they were “upset as usual.”
  4. I cannot be sure of all the precise details, but, in summary, the mother did not exhibit any sense of urgency. The father became increasingly frustrated. The mother’s husband saw fit to intervene. Eventually, the father took hold of both children by the hand and began to try to get them through the security barriers. The mother objected and began shouting and screaming. Airport staff intervened and called the police. The children were hugely distressed. When asked in the presence of their mother if they wanted to go with their father, they said no and the police left them with their mother. By that stage, of course, the children and father had missed their flight in any event.
  5. The mother in her written statement and in her oral evidence insisted that the children were made the subject of a police protection order:

    “The police protection order was to last until 31st May, during which time E was to have no contact with the children.”

At this point, every single lawyer in the country is thinking that the mother is a liar.


The Judge explains why

The granting of a police protection order pursuant to s.46 of the Children Act is a formal process governed by detailed procedural requirements, none of which the mother was able to evidence. Of course, a police protection order can as matter of law only last for a maximum of 72 hours and not nine days. On the evidence currently before me, the “police protection order” was a fiction of the mother’s imagination. It is no coincidence that this supposed order covers the whole of the period during which the children were supposed to be with their father in Sweden. I note the mother’s complaint that, “Even during this time the father was trying to call and Skype the children.”


Obviously, the whole situation must have been horrible, and the Court acknowledge that, whilst understanding that the father had been sorely provoked.

I do not find the father entirely blameless for the distressing scene at the airport, but understand the pressures he found himself placed under with the flight closing. On balance, I find that this scene was largely instigated by the mother’s behaviour. I do not accept that the children were inherently unwilling to go to Sweden, more that they were understandably confused and terribly upset by the behaviour of their parents.

It doesn’t reflect terribly well on mother that the children are basically travelling with no possessions at all, not even a change of clothes.


I was, for example, astonished to learn, very much in passing when I enquired about collection arrangements, that on the father’s visits, whether in the UK or Sweden, the children are sent in, literally, the clothes in which they stand up and with their passports in their hand: no change of clothing, no favourite toys, nothing to cuddle, no books, not even a toothbrush. When the father visits the UK, he is obliged to bring those items with him on the plane from Sweden. The same situation applies even when the children stay with him for four weeks during summer holidays The message this sends to the children as to the totally separate existences they have with each parent is deeply unfortunate and unhealthy. It is compounded by the mother’s refusal to speak to the father at points of handover. The reason she gave was, “I cannot bear to be near him.”


The Judge doesn’t say this, and I don’t normally go further than the Judge, but this is SHABBY.


There are features of this case that suggest to me that mother is inching towards the Court losing patience and sanctioning a change of residence if she continues on this path of frustrating contact and not complying with Court orders.


  1. I simply do not accept the mother’s florid descriptions of the children complaining desperately that they do not want to go to see their father. That is a repetition of the evidence which was demonstrably and comprehensively undermined by the findings of the CAFCASS officer, Mr Power, in his report dated 24th May 2012. If, which I doubt, the children do express such views to her, the most probable explanation is their understanding of her hostility to the father and their desire to please her, their primary carer. I prefer the father’s evidence that the children are loving and affectionate with him, enjoy the time that they spend together and are happy and relaxed with him and his family.
  2. In July 2014, the mother made allegations of sexual abuse against two girls who are friends of B in Sweden. Those allegations were taken seriously by the Swedish police and social work authorities and both girls and their parents have been interviewed. The Swedish authorities found no basis upon which any action could or should be taken. I found the mother’s attempts to blacken the father’s character by insisting that he approved of sexual relationships between young children unconvincing, bearing in mind that such an allegation has never been made before. The evidence, such as it is, does not come close to persuading me that B has been sexually abused.



I thank my lucky stars that I no longer have to deal with private law contact cases and handovers. It always meant that I spent the whole of Friday afternoon on the phone with (a) clients who wanted to cancel weekend contact for really spurious reasons and telling them not to do it and (b) clients who had just had their weekend contact cancelled for really spurious reasons and having to ring the other side and get it back up and running.





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