Tag Archives: private law

“The father is to have no contact while the investigation is ongoing”

Posted on December 5, 2016 by suesspiciousminds

This is an interesting case, decided by Recorder Baker. It was a private law case, which had considerable Local Authority involvement. Many of the issues may seem familiar to practitioners, but the Recorder has grabbed the facts and issues and put them together in a very pleasing and digestible way. And produced some useful guidance for other similar cases.

Re V (A child) 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/58.html

The facts are painfully familiar. [Not how ALL cases go, by any stretch of the imagination, but we’ve all seen ones pretty much like this before.]

Man and woman meet each other. Love each other very much. When a man and a woman love each other very much they have a special cuddle, and lo a baby is born. Man and woman fall out of love. Man and woman stop living together. Quarrels ensue. Woman makes allegation about man. Man’s contact with child stops.

Here the allegation was that the man had been ‘massaging’ the child, who was about six. Eueeww, creepy, you’re all thinking. Massaging a child. Creepy.

Well not so much when you know that the child has a medical condition that requires massage as a treatment and the dad is a physician. Not quite so creepy.

Let’s make it very plain at the start that the Judge in this case did not find that the father had done ANYTHING wrong to the child. Nor did he find that the mother had made up the allegations or been malicious or deliberate in any way. It is just a series of events that got out of control, and a series of failings from professionals to look at the evidence for the mother’s suspicions and tell her frankly and plainly that there was nothing in them. As a result of which, a father lost contact with his son for 42 weeks.

On a day in January 2016 the mother and V were at home with a family friend who was visiting. The family friend heard V make some comments about the time he lived with his father including comments about massages that he and his father had given each other. The family friend, who asserts experience in child protection matters, spoke to the mother on the telephone after her visit and informed the mother that she was going to make enquiries with respect to “intervention” with V on the basis that she was concerned by what she had heard. On the same day she telephoned the child’s school and told them about her concerns.
The school initiated safeguarding procedures and 6 days later V was seen in school by the Investigating Police Officer and a Social Worker. Prior to speaking to V they spoke to V’s school teacher. Amongst other things the teacher told them the school did not have any particular concern about V, that they had witnessed a good relationship between V and his father and that they had observed him to look forward to his father picking him up from school. The school were aware that V was awaiting a corrective medical procedure and that they were aware that V’s father, a medical professional, did massage V in connection with this condition. They confirmed that V had made no allegations of sexually inappropriate behaviour to them.
When the Investigating Police Officer and the Social Worker spoke to V, he made no allegations against his father and told them that there were no bad things about living with his dad or mum. When asked if his father ever did anything that makes him feel confused, upset or angry, he said that his father did not.
The Social Worker and the Investigating Police Officer communicated the contents of their conversation with V. It is recorded that the mother was not happy and was asking about stopping “contact” between V and his father. V was due to return to live with his father in the next few days. At that time it is recorded that she was advised that she would “struggle” to justify preventing V seeing his father and would be in breach of the extant court order. It is recorded that the mother was advised that she should not question V further.
The following day the mother attended at the local police station with a relative. She was initially spoken to by a police officer who was staffing the front desk. That police officer made a record of her attendance and sent a note to the Investigating Police Officer relating the encounter. It records that the mother was asking V to tell the police officer what he had told her. It records that the mother was asking V leading questions to elicit answers from V. She was asked to return later in the day when the Investigating Police Officer (who had attended the school the day before) would be on duty.
When the relative, mother and V returned to the police station the same day the Investigating Police Officer spoke to them. The Investigating Police Officer’s note records that during discussions with the mother, she reported that she had been undertaking research on the internet about how to speak to a child and that she had been asking V questions about what his dad had done. It is noted that it appeared to the Investigating Police Officer that the mother had been asking leading questions of V but when this was raised with the mother the relative became angry and aggressive and was asked to leave.
V was then video interviewed. I will return to the contents of that interview below.
After the interview the Investigating Police Officer noted that the mother “was keen to contact her solicitor and appeared to be checking that [V] had stated everything he needed to”. Thereafter the Investigating Police Officer advised the mother that the matter would be passed to a different police station for further investigation.
The transcript of the video interview of V makes for interesting reading. It can be asserted that he makes a number of allegations about his father massaging him, possibly involving the child and the father’s private parts. However, in a letter from a Detective Inspector written to the father’s solicitors 6 months later the contents of the interview are described thus:

“[V] did provide an account on video interview, and it was noted by officers that he did present in a very different manner compared to the previous [the school visit]. His account changed numerous times and he failed to make any clear or concise disclosures.”

That brief description is accurate and encapsulates the fact that the interview of V, even taking into account his age, is muddled and inconsistent. It does not provide a strong foundation for assertions of sexually inappropriate behaviour by the father. In the end it was the only evidence that could possibly have been taken as any evidence of inappropriate behaviour by the father.
On the same day (i.e. the day that the mother attended the police station in the morning and those events summarised at paragraphs 13 and 14 above occurred) the mother applied to court for a prohibited steps order preventing the father from removing V from her care. That application was made without notice to the father and was granted.

Despite there being not a grain of truth in the allegations, and pretty much every professional who looked at the evidence reaching that conclusion, it still took 43 weeks for this father, who had been having shared care of this child, to have any contact with his son again.

Here is the bit that is troubling, yet still sadly familiar

At some time after Day 6 and before the completion of the section 47 investigation the local authority had presented the mother with a written agreement. That was not in the Court Bundle so when I invited the local authority to attend the final hearing I also asked them to bring a copy of the written agreement. It is undated so it is only possible to estimate when it was signed by the mother. It asks the mother to ensure that:

“[The Father] is to have no contact with [V] whilst the investigation is ongoing.”

The Judge notes that of course the mother placed reliance on that written agreement – even if I WANTED to allow contact, I can’t, because the social workers have made me sign a written agreement not to allow any contact.

Even after both the Local Authority AND the police had closed their case, nobody tore up that Written Agreement, so it was being relied upon by mother months after any investigation was done and dusted. There being no evidence whatsoever of abuse, of course the investigation was going to fizzle out. Nobody took steps to revoke it though. (And cynically, one might say that its existence rather suited the mother)

The decision to have an Initial Child Protection Case Conference having been rescinded, the local authority continued a ‘Child and Families Single Continuous Assessment’ as it is referred to in the document. The use of the word ‘continuous’ is ironic in the circumstances, because it turned out to be anything but. The assessment document itself makes it difficult to determine when it actually concluded, however I suspect it was within 3 ½ weeks of the initial phone call to the school. The decision to close the case was reviewed and ratified by a social worker manager one month after its’ conclusion.
The assessment recounts a number of things. It repeats the account of V’s video interview in the same terms as identified at paragraph 25 above. It notes however that when V is seen by the social worker 2 ½ weeks after his video interview, he again expresses no concern about being in the care of either parent. It records some of the things I have related above that might have at least alerted the writer or the manager to the possibility that this was not simply a case of child sexual abuse and that there were other risk factors to consider. However, it recommends no further action is taken by the local authority. When that decision is ratified by the Social Work Manager it is recorded in the following terms:

“I agree with the social workers (sic) recommendations to close this case… From the information collated during the assessment process, it is considered that the likelihood of significant harm posed to [V] is considerably reduced given that [the mother] has obtained a Prohibited Steps Order as well as agreed via a working agreement to ensure that he does not maintain contact with his father… if [the mother] were to breach this agreement such would undoubtedly increase the risk posed to [V] and, in turn, impact upon his developmental needs.”

It is difficult to read that paragraph as anything other than a conclusion that (i) in the view of the local authority V had been sexually abused by his father and (ii) that if he were to have contact with his father he would be at risk.

The Judge is quite right – of course you can’t read that as being anything other than a professional assessment that this child was safe because mum had agreed to stop contact and would be at risk if contact resumed. Which would be a solid assessment IF it were based on an analysis that was supported by the actual evidence in the case. But it wasn’t.

The local authority did not become involved with V again until the Court made a section 37 direction, some 7 months later. That section 37 report, which was completed by a social worker who had not previously been involved, concluded that there was little or no evidence to substantiate any allegations of sexual abuse. The writer also observed that there was considerable evidence of a hardening of V’s views against the father, contrary to the situation that existed when he was living with the father and mother jointly and indeed contrary to the situation when his relationship with his father had only been interrupted for a few weeks. The writer concludes that V has suffered significant harm but that harm emanates from the acrimonious dispute between the parents rather than any form of direct sexual or physical abuse. The analysis of the factual matrix is compelling and thorough. Whilst neither I nor the parties entirely accepted all of the recommendations made within the report, that does not detract from the value of the work undertaken. It is right that I acknowledge that the author was employed by the same local authority that this judgment criticises.

The Judge goes on to discuss the role of Local Authorities in private law proceedings. And it is right that when I receive notification that I myself am dragged (as an LA lawyer) into private law proceedings my reaction is much like THIS

Why God, why? Why have you forsaken me?

I have every sympathy for and understand only too well the limited resources available to local authorities. Some local authorities, in my experience, display considerable reluctance to become involved in private law disputes and it is possible that there is an instinctive wish to withdraw from meaningful involvement as soon as possible, believing that private law disputes will ultimately be resolved by the courts. Local authorities do, after all, have many children whose welfare they are charged with protecting. However, local authorities have statutory duties and the way in which those duties are carried out have significant and lasting ramifications even if they do not become directly involved in any court proceedings that follow.

The Judge then goes on to give some very careful, thoughtful, measured and helpful guidance for Local Authorities in this situation, and decries the approach of “Allegation against dad > get mum to stop contact > so no risk = close the case” without a proper consideration of the allegation.

In any dispute between two parents where an allegation of abuse of any nature is made, instigated or supported by one parent against the other it is, in my view, incumbent upon a local authority receiving a referral to have in mind all the possible risks that may be inherent in any such allegation.
There is of course the risk that the allegation, whatever its nature, is true. There is the risk that that the allegation is not true. There are also the risks that the allegation is in some way mistaken, mistakenly encouraged or deliberately fabricated.
There are of course very serious welfare consequences for a child if allegations of, for example, sexual abuse are true. However, there are also serious welfare consequences if the allegations are not true. Those consequences include the possible temporary or permanent cessation of a relationship between a child and a parent. They include the inculcation of false events within a child’s memory and belief system. They include one parent portraying a negative and inaccurate view of another parent, with possible long term consequential psychological damage to a child who is led to believe that part of his or her genetic make-up is in some way ‘bad’ or unworthy.
It strikes me that in circumstances where the backdrop is a dispute between parents, the words of Baroness Hale in Re B [2008] UKHL 35 at [29] should be at the forefront not only of the Court’s mind but also of any investigative authority:

“…there are specific risks to which the court must be alive. Allegations of abuse are not being made by a neutral and expert Local Authority which has nothing to gain by making them, but by a parent who is seeking to gain an advantage in the battle against the other parent. This does not mean that they are false but it does increase the risk of misinterpretation, exaggeration or downright fabrication.”

It is notable that Baroness Hale refers to the local authority as being “neutral and expert”. In my view and with respect, in this context it seems to me that ‘neutral and expert’ implies a professional detachment that is alive to all the risks and weighs all the evidence in a balanced way bearing in mind all the reasonable possibilities. It does not imply an abandonment of a precautionary approach to child protection but acknowledges that ‘child protection’ encompasses protection for children from mistaken and false allegations as well as those that may be true.
It also occurs to me that where local authorities act in a way that purports to restrict the relationship between a parent and a child, under pain of legal action (as in this case, condensed into the written agreement) they must bear in mind that they may be interfering as a public body in a relationship that has, for want of a better term, special status. That ‘special status’ is reflected in the following observations about this case, which I doubt are exhaustive:

a. This father had parental responsibility for V;

b. This father had a court order that ensured that V lived with him and the mother;

c. This father had an ongoing relationship with his son about which there was ample evidence of a positive nature;

d. V had an Article 8 right to family life with his father that should only be interfered with if justified and proportionate; and

e. The father had an Article 8 right to family life with his son that should only be interfered with if justified and proportionate.

When interfering with such powerful imperatives it, in my view, behoves the local authority to record the situation carefully and accurately, formulating an assessment of the risks on all the evidence reasonably available, even if that assessment still concludes that for the time being the child should not see the accused parent. Simply to say ‘the child will not see the alleged perpetrating parent and is therefore safe’ and thereafter close the case, is an abrogation of the responsibility placed on local authorities by Parliament.
Failure to assess the circumstances properly has far reaching effects, even if the local authority do not themselves initiate protective court proceedings. In this case alone there are two obvious examples. First, when a private law case comes before the court Cafcass complete a ‘Safeguarding’ letter, a process that involves a Family Court Reporter quite literally telephoning the local authority to find out if they have had any involvement with the child or their family. Someone at the local authority looks on the computer and relates the contents of the information contained therein. The conclusions and nuance of that information informs the contents of the Safeguarding Letter which then informs the judge at a First Hearing Dispute Resolution Appointment. Decisions taken at the early stages of a case are of vital importance and can determine the direction of travel for the court process. Re-visiting the conclusion of the local authority assessment set out at paragraphs 33 and 34 above, it is not difficult to imagine the message that would be conveyed to the court by such a conclusion. Neither is it difficult to imagine the different approach that might have been taken by a court had that conclusion recorded a more balanced examination of the risks in this case.
Secondly, I have already alluded to the possible effect of the Written Agreement entered into between the mother and the local authority (paragraph 31). Again it is not difficult to imagine how a court, bereft of the complete picture, would approach a situation where it is informed that the local authority have told the mother that she must not allow the child to see his father. The impact was doubtless magnified by the lack of an end or review date in the agreement, allowing it to be said quite accurately that the agreement apparently still applied.
In addition, an approach that lacks balance and objectivity allows a parent who is more than willing to believe, subjectively and possibly inappropriately, that the other parent has sexually abused their child, to invest in that belief. It prevents them coming to terms with the possibility that the other parent may not have sexually abused their child. It reinforces both parents’ negative belief about the other parent which in turn is likely to impact adversely upon the child. Ultimately it increases the difficulty of putting the situation right and allows parents to get ‘stuck’ in a conflict that could have been defused much earlier.

You know that bit in figure skating competitions where bouquets of flowers get thrown onto the ice? The extract above is deserving of similar treatment. It is important, fair and easy to follow. If someone had given this passage to me and said “Which Judge wrote that?” I’d have said unhesitatingly Mr Justice Peter Jackson. This Recorder is one to watch.

If you work in a social work team, particularly a duty team or one that does section 7 or 37 investigations, please share this judgment. If you represent parents, print it out and put a big post it note on it that says “Helpful stuff”

Don’t skate over them!

25 Comments

Posted in assessment of risk, case law, private law and tagged 2016 EWFC 58, need to investigate allegations in private law, private law, Re V a child 2016, Recorder Baker, stopping contact during an investigation, unfounded allegations, written agreement to stop contact. Bookmark the permalink.

Back off War child. Seriously

Posted on July 28, 2016 by suesspiciousminds

Yet another alleged radicalisation case, this time private law.

Amongst the many allegations, that the father had wanted to give the child a name which in Arabic meant “War”

And if you think that a Point Break reference is beneath this blog, then you haven’t been paying attention

Re A and B (Children : Restrictions on Parental Responsibility : Extremism and Radicalisation in private law) 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/40.html

There were two children, aged 3 1/2 and 2. The parents are separated. The mother alleged in private law proceedings that the father was showing signs of extremist behaviour and that he presented a risk to the children as a result.

Outwith the extremism allegations, there were some very serious domestic violence episodes, and as a result the father was imprisoned and there was an order for his deportation

On the 13^th June 2014, in breach of the order made the preceding November, F came within the area of M’s address in Cheltenham, he was carrying mobile phones and various other items and wearing protective motorcycle-wear (he had driven there by car). F was found by a police officer in M’s garden behind the shed and he was arrested, charged and remanded in custody. This incident, which ultimately led to F’s conviction, resulted in a multi-agency risk assessment (MARAC) collating evidence about what the local authority and police considered to be a high risk case of domestic abuse. M said in her statement, and I accept, that she was regularly warned by the police and other professionals that they were worried about her safety and that of the children. She and the children were moved from Cheltenham, to a location which remains confidential. M has become highly anxious, has had counselling (to which I have already referred) and CBT. She describes herself as on a constant state of high alert and is frightened to let the children out of her sight; even to the extent that she is too fearful to allow them to go to nursery school.
Following the June incident on 14^th October 2014, M applied for a further non-molestation order without-notice; a further injunction order was made forbidding F from using or threatening violence against M or from going near her property; the order made expires on 14^th October 2016. On 15^th December 2014, while on remand, F applied for CA orders including, somewhat unrealistically, a child arrangements order that A and B live with him and a prohibited steps order. Meanwhile, as arranged by the authorities, M had moved to another address in a different area of the country to stop F attempting to get to her and the children again.
F’s criminal trial took place at Bristol Crown Court on 26^th February 2015 and 2^nd March 2015; he was convicted on two counts of a breach of a non-molestation order and was sentenced by His Honour Judge Tabor QC, on 9^th March 2015, to consecutive sentences of 3 years’ imprisonment. The judge made a 10 year restraining order. The court also made a recommendation for deportation as F is a foreign national who had received a sentence of more than 12 months.

In case you want to know what the ‘various other items’ were:-

On 13^th June 2014 F was in breach of a non-molestation order when he was found by police hiding in the rear garden of M’s home with various items concealed about his person, including a black face covering, a torch, an aerosol spray can, camouflage gloves, a black cutting tool and holder, an eye mask, safety glasses, iPhone and Samsung phone. Another bag containing a hammer and screwdriver was discovered in F’s hiding place behind the garden shed (later found to have traces of F’s DNA) and a search of F’s car revealed two further mobile telephones.

Brrr.

In the criminal trial, father denied everything

F denied having been in M’s garden at all and said that the police had made up all the evidence and that he was the victim of a big conspiracy. As His Honour Judge Tabor said F had, since the moment of arrest, sought to cast the blame on everyone but himself. F had accused practically every person concerned with the case of lying, including M, M’s family, the two arresting officers, the interviewing officers, the social worker who interviewed F on behalf of the court, and the psychologist who F had seen. F accused his family case solicitors of incompetence and his wife’s solicitors of incompetence. This mirrors F’s evidence in the case before me where, when he is not denying everything he is accused of, he systematically seeks to accuse everyone else of lying about him.
In his sentencing remarks, the judge went on to say that the fact was “that no-one really knows who you are. You claim to be Syrian but you came to this country with no passport. You are a man who is a stranger to the truth. It is difficult to believe a word that you say. More concerning is the fact that you appear to be completely unconcerned about the terror that you have inflicted upon your wife, who naturally now fears for her life and that of her children. You are so consumed yourself that you totally ignore the pain that you inflict on others.”
His Honour Judge Tabor made reference to the fact that F had chosen to sack his counsel during the criminal trial (he has done so during these proceedings too); he said “when this case started you were represented by a highly able member of the Bar. He would not have allowed this case to start if it had not been ready. On the second day after your wife had been cross-examined, you chose to dispense with his services. I have no doubt that this was your plan all along as you wished to control proceedings. I believe you are a dangerous man, particularly dangerous to your wife and children. You are devious and self-obsessed. There is no mitigation in this case at all other than the fact that you do not have a criminal record.”
F denied all the evidence against him in the criminal trial, indeed he continues to do so. In respect of all the items found in M’s garden, F said that PC Rogers had lied to the court and made up his evidence about having found F in the back garden, he was never there. He claimed that the glass cutter found in the bag at the scene had come from his car and was in an emergency bag; that the camouflage gloves were his driving gloves for use when he adjusted his tyre pressures; that the black cutting tool was part of an emergency kit from America to cut his seatbelt. He told the jury that the black face covering was a pollution mask which he used because he was very conscious about his health and that the safety glasses were to protect his eyes when driving because he could not use the air conditioning. His DNA had been found on the handle of the screwdriver, but he denied it and would not accept the evidence. Similarly, F denied that the foot spray found at the scene belonged to him and said that the police had made up this evidence to “spice the case up”. Unsurprisingly the jury did not believe F and found him guilty.
The judge passed a total sentence of three years which reflected the seriousness of his offences. These were not minor breaches of a properly imposed injunction but serious and pre-planned breaches which involved another person and F travelling from London having located M and the children. He came fully armed and prepared; as His Honour Judge Tabor said on the 12^th of June 2014, having been foiled in his attempt to use his friend to gain access, “you made a far more sinister plan. You went and hid in the garden of your wife’s home in the late afternoon. You had with you: glasses to protect your eyes; a face mask, which would also prevent you from inhaling noxious fumes; a large pair of gloves – it was June; a glass cutting tool; a sharp-bladed tool; a hammer, screw-driver and torch. I have no doubt that you sat in the garden and waited for an opportune moment to break into the house. Furthermore, I infer from your activity, and with what you had brought with you, you were not only going to force your way into your wife’s house but also to do her harm or abduct the children, or both. You were caught in the act of hiding behind a shed in the garden by a police officer who chased you across several gardens before you were finally apprehended. You were to complain that you suffered from a slipped disc, but as the officer pointed out, you appear to have cleared large fences in your bid to escape. This was one of several maladies that you complain of.”
This feature of F’s evidence, remarked on by the judge in the Crown Court, was replayed in this court. There was no medical evidence in support supplied by the prison doctors despite F’s attempts to get it. In addition to the three-year term of imprisonment there is a ten year restraining order in place until 9^th March 2025. F is forbidden to contact M or the children directly or indirectly (except through a solicitor). He cannot go to any address where she is resident. He cannot enter Gloucestershire except to attend the family court or for pre-arranged visits to see the children. He is not to instruct anyone or encourage in any way any person to contact M or the children (except through his instructing solicitor). On 5^th July 2016 my clerk was sent an email purporting to be from F’s father, from whom the court has heard nothing and who had filed no statement within the proceedings. It had had attached an email to M which, on the face of it, was an apparent attempt at breaching paragraph 4 (set out above) of the restraining order by contacting M through the court.

The radicalisation evidence begins here

M claims that A has been caused emotional harm by F’s behaviour towards him; that while still an infant F exposed A to violent films which he watched and told A of his expectation of how A should fight; F had purchased a replica AK47 with laser as a present for A’s first birthday in October 2013 which was unsuitable for his age, and had then posed with his infant son in a ‘Freedom Fighter’ pose.

It was said by Miss Isaacs, in the schedule prepared by her on M’s behalf, that the evidence in support of this included F’s expressed beliefs that non-Muslims are inferior to Muslims, that homosexuals are unnatural and should be killed and that women are subservient to men; and specifically that F “expressed acceptance of the use of violence as a means of ensuring compliance with his views and beliefs”. That it was F’s “expressed beliefs [sic] that it is acceptable to kill those who have left the Muslim religion”; that F had “expressed admiration and respect for Syrian ‘Freedom Fighters’ and [that it was] his expressed view that he would like to go there and fight with them”.
It was further said that the risk of radicalisation could be found in “F’s expressed glorification of war including wanting his child or children to be called ‘War’ in Arabic and posing for provocative [sic] photographs”; and that F had purchased bullet proof clothing, gas masks, knives, night time goggles for the purpose of sending to friends in Syria, with similar items having been found and seized by police during an authorised search of F’s flat. This was neither confirmed or denied by the police. The email from the Andrew Fairbrother of the MPS Directorate of Legal Services said that M had not provided a witness statement from them and the MPS investigation “came about in consequence of information that [M] provided on or around the 28/01/14 to the Gloucestershire Police that was passed on to the MPS, and also in consequence of a letter the [M] sent to the Secretary of State for the Home Department dated 11/02/14 that was referred to the MPS on or around 21/02/14”.

There was also evidence presented to the Court about father’s controlling behaviour towards mother

It was said by M that F has caused her emotional harm by the use of coercive and controlling behaviour, including financially abusive behaviour. M said that he did so by assuming control of the family finances and isolating M from family, friends and the wider community. In fact, F accepts that M was socially isolated when they lived in London and said in his statement dated 23^rd February 2016 “she did not go out at all”. He then goes as far as to say they had arguments because she would not take her head scarf (hijab) off at all, claiming that he “could see no reason for her to be veiled at all times but she insisted on this.” Later in the same statement he says that the family “went out rarely but sometimes went on outings to shops, parks and museums…” At no point in his written evidence does he mention having friends at the home, but later after he had concluded his oral evidence he attempted to have the case adjourned to have further evidence filed or disclosed, including from some friends who, he claimed would give evidence that they visited F and M at home and that M and F had visited in return. Not only was this never mentioned previously, it contradicts his own evidence.
To return to complaints made by M she said as part of his controlling behaviour F had forbidden her to speak to men without his permission; and that F forced M to walk on the inside of a pavement when in public to avoid attracting male attention; that F shut her in the bedroom to avoid males when they visited the family home. M said that F used the threat of taking A away from M to make her compliant with his wishes. M said that on several occasions F told M that he would kill her and/or her son if she contacted the police or tried to leave him; and that F made reference to the use of violence as an appropriate ‘tool’ to discipline women to ensure her compliance.
F further undermined M both by repeatedly telling her that she was a bad mother and by making complaints to professionals which, in part, led to two investigations by social services departments (which uncovered no reason for concern). M said that his controlling behaviour included F following her to the local social services offices, on 6^th November 2013, and that his presence caused her to feel intimidated and anxious. She complained that F was manipulative and that, specifically, he put her under pressure to agree to A being circumcised, disregarding her wishes and causing the baby pain and infection. His manipulative behaviour extended to his withholding information about his mental health, for which he received treatment and he forbade M from mentioning it; during these proceedings he has continuously made allegations that M is mentally ill or unstable.
It is M’s case that she and the children are at risk of future serious physical and emotional harm from F because of his behaviour and the threats he made during the time they lived together. She places reliance on the occasion on the 14^th October 2013, when F assaulted M while she was pregnant with B, he threatened to get rid of the thing she loved the most, implying that he would kill A if M reported his abusive behaviour to the police. M has said that F frequently implied that he would kill her or A or both of them if she left; he also threatened to take A away from M and to take him to Egypt.
It is M’s case that the action taken by F on 13^th June 2014 constitutes evidence of an advanced plan by F to abduct or cause serious harm or even death to M and the children. This concurs with the sentencing remarks of His Honour Judge Tabor made in February 2015.
As evidence as to the extents that F would go, M relies on what she said that F did during their reconciliation between August and October 2013, when F covertly placed a tracking device in the baby’s pram in an attempt to monitor M’s movements; she says that she discovered by the device on 23^rd October 2013.

The father did not redeem himself in the evidence he gave before the Family Court, deploying as his defence that his wife’s behaviour following pregnancy was so hormonal that it had led her to behave badly towards him but that he now forgave her. You will not be amazed that Ms Justice Russell was not persuaded by this novel defence.

F has filed two statements in these proceedings, dated 23^rd February and 23^rd May 2016. To the first he exhibited certificates from various courses he attended in prison which, he said, meant that he was a changed man. His case remained that M was lying and had “started a conspiracy against me with the bad people to get rid of me completely.” The identities of the bad people remained unclear. According to F, M had abused him throughout their marriage; had behaved in an aggressive way and had racially abused people, in particular he claimed she was “severely anti-Semitic“, when she had ventured out from wherever they were living. His second statement, which he prepared himself, amounted to little more than a lengthy diatribe against M, the “British Justice System” and an exposition of his view of women based on what he said he had learned in prison. “These courses taught me there is no pregnant female in the world who is herself when she is pregnant. This can last for up to two years after she has given birth, she will recover slowly not only physically but psychologically and emotionally therefore I forgive [M] for what she did to me.”
If this is indeed what F was taught in prison those courses are in need of serious and extensive revision and overhaul. His oral evidence was more of the same, an attempt to blame M for everything that happened and to exonerate himself, by applying the platitudinous, misogynistic stereotype of the mentally unstable and emotionally volatile woman, whose behaviour was such that it would have tried the patience of any man to breaking point.

The Judge made some powerful findings of fact

Findings of Fact

I have considered the evidence of the applicant and respondent and for the reasons I have set out above, and below, I accept the evidence of M and reject that of F. I find that the applicant’s case is made out and that, apart from the allegations regarding radicalisation, to which I shall return, the specific complaints made by M about F’s violence and controlling behaviour I find to have been proved on the balance of probabilities. F has during their short relationship, which lasted little over two years, repeatedly threatened and used violence against M. The violence had not been slight, or at the lower end of any scale; on several occasions he has seized M by the head and neck and attempted to choke or strangle her; once while saying that he would be able to break her neck in one twist. He has slapped her, kicked her, shaken her and thrown her to the ground when she was pregnant. These are all serious assaults and the choking or attempted strangulation must have been terrifying to endure.
These violent assaults took place when A was there and I find that F assaulted M on at least one occasion while she was tending to A which must have caused him distress and probably instinctive fear, even if he was too young to be aware exactly what was going on. I find that he bought the baby a replica assault rifle for his first birthday, which F later posed with himself; and that he watched violent films when the child was there. This behaviour would have caused M to fear for A and that his father was exposing him to, and encouraging him in, the use of violence. I do not accept that F is, as he has said, a peace loving man who would not even harm animals because he is a vegan; as his evidence about this was another example of self-serving evidence which suddenly appeared during his oral evidence without any previous mention of it.
F behaved in a threatening and intimidating way towards M frequently throughout their relationship, this included him threatening to kill A on one occasion and, on numerous occasions, to carry out an “honour” killing on her if she ever left him. He was abusive and controlling of M. This abuse included financial abuse with F controlling the family’s finances. I accept that she only had access to the money in the joint account and that the amount of money available in that account was entirely controlled by F. Even on his own account M was isolated from friends and family, but I do not accept that this was her choice, rather I find that he set out to keep her isolated and refused to allow her to mix with other people. I find that he forbade her to speak to other men without his permission; he intimidated her when they were out by making her walk in the inside of the pavement and avoid contact with other men; he shut her in the bedroom when his friends visited him; he repeatedly threatened to take A away from her to get her to comply with his wishes; he threatened to kill her and A if she left or contacted the police; and, that he explicitly told her that violence was the appropriate way to discipline a woman.
F made repeated claims to professionals that M was not fit to be a mother; this he continued to do throughout these proceedings and in his oral evidence. There have been two social service assessments of the family because of referrals due to domestic abuse. The first was by Kensington and Chelsea in August 2013 when M and A (then 9 months old) were referred by a senior care health advisor, to whom M had disclosed that F had grabbed her round the neck, causing bruising to her throat, amongst other physical abuse. This description corroborates the evidence in her statements. M was interviewed by a social worker and by the police; she was then taken by her mother from the police station to her mother’s home. As M and A were considered to be living in a “place of safety” outside the borough the case was not taken any further. When M and F reunited this triggered a further referral in September 2013; this time the referral was by the health visitor. M told the social worker that she was a practising Muslim, but not as strict as her husband, and that she had not been in agreement with circumcision, however F had gone ahead with it; M had felt it was cruel and painful for the baby and that it was not necessary (further corroboration of M’s evidence). The risk of further domestic abuse was considered to be raised by M’s being pregnant. The risk was assessed as High. These two s47 CA assessments corroborate M’s evidence.
In October 2013 Kensington and Chelsea carried out a further assessment, by which time M had left and gone to Cheltenham, having obtained non-molestation orders against F with support from another agency, Advance. The assessment recorded that the domestic abuse she was experiencing was of the “controlling and intimidation nature [sic]”, such as putting a tracking device in A’s pram, following her when she was out on errands and checking her mobile phone each time she received a phone call or message. F was described as minimising the incidents and that he made out that his wife was “sensitive and over-reacts”. It was recorded that it was not possible to discuss the domestic abuse in detail with M who feared she would be placed at more risk of domestic abuse at home had she done so; as the assessment records the “the fact that [M] fears the consequence of this discussion is evident [sic] of the level of intimidation and worry that his behaviours have had upon his wife.”
Again the assessment corroborates M’s evidence. I find that F did place a tracking device in A’s pram, and that he did follow M when she went out; specifically, I find that he followed her when she went to social services offices. As he had done so it was unsurprising that the assessor made the comment about the evidence of the level of intimidation experienced by M. To go to the extent of putting a tracking device in the baby’s pram is an example of the extreme lengths that F would go to try to control and monitor M’s movements; when this was coupled with following her she must have been left feeling terrified, undermined and powerless. I have no doubt that F intended that she should feel that way.
It is behaviour such as this which then led to F’s planned, calculated and determined attempt to get to M and the children in Cheltenham. The breaches of the non-molestation order were very serious, as was reflected in the sentences handed down, and armed with a plethora of sinister implements F can only have been intending to cause harm to M and the children or intending to abduct them as the judge said in his sentencing remarks. F posed a considerable and a serious risk to M and to the children at that time and there is no evidence before me that would support a finding that the risk is in any way diminished. F continues to use all means at his disposal to try to circumvent the restraining orders, the fact that those means are very limited is only because he remains behind bars. Based on his past and current behaviour, his denial of his criminal convictions and the absence of any remorse the likelihood is that F would again attempt to track M and the children down and to harm M and abduct the children. Abduction causes lasting harm to children and the risk that it is likely to occur must be taken into account by this court when considering how safe it is to allow F’s involvement in the children’s lives now and in the future.
The fear of being tracked down has directly affected the children as it has undoubtedly affected their mother; to live in fear and anxiety will have made her, as their guardian observed, less emotionally available to the children than she otherwise would be. This fear has led to her, and therefore the children, leading much more restricted lives than they otherwise would have done. She was, and is, frightened that F could track her down as he did when she was living down in Gloucestershire and is so fearful that he would manage to do so again that she cannot bring herself to let the children out of her sight. This fear is not ill-founded, it is all too easy to access information on the internet, and F has done this before. For that reason, she has not enrolled A or B in a nursery and it is for that reason that she seeks an order to allow her to change the children’s names.

Changing a child’s surname is not an easy thing to do, where one parent objects, but I am sure that most readers would be 100% satisfied that it was justified in this case, and so was the Judge.

The extremeism elements were more difficult – the police disclosure had not provided any evidence, and as a reader, I was left with the impression that this man was violent, controlling, manipulative and probably a fantasist who enjoyed leading his wife to be fearful of him. In terms of hard evidence that he was connected to Daesh or radicalised, the absence of any police or Counter Terrorism investigation into him made that difficult to prove.

Given the very strong evidence against him in almost every other regard, it wasn’t really necessary to prove those matters. Ms Justice Russell was critical of the attempt to include such matters in the schedule of findings sought.

In private law proceedings where allegations of extremism or radicalisation are pursued as part of the case or findings sought against another party, then it must be based on the evidence. As Lord Justice Munby (as he then was) has said in Re A (A child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ 12: “It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation“.
The President’s Guidance: Radicalisation cases in Family Courts issued by Sir James Munby P, on 8^th October 2015 sets out a checklist of factors that the court is to be alert to, and emphasises the need for a co-ordinated strategy predicated on the co-operation between agencies. There was no lack of co-operation in this case, but there was a lamentable lack of a properly constructed and focussed preparation of M’s case, based on the evidence, particularly in respect of the allegations of radicalisation, and the way in which this was prosecuted on her behalf. When applications for disclosure were made by counsel it was not even clear which police service was being asked to disclose information about F; the Gloucestershire Constabulary or the MPS. Draft orders for disclosure were addressed simply to “the _ Police”; which can only indicate the lack of information on which those applications were based. No application was made to make use of the 2013 Protocol, and it is difficult to reach any other conclusion other than that the applications were a speculative attempt to bolster the case on behalf of M.
In cases where there is accusation or allegation of extremism or radicalisation the party making those allegations cannot rely on them without evidence. Where there are current or past criminal investigations it is necessary to wait for disclosure before the schedule of findings is produced and finalised. In private law, as in public law, the party bringing the case carries the burden of proof; it is on them that the duty lies to adduce evidence in a timely fashion and in compliance with the FPR 2010. Any finding of fact in private law or public law family proceedings, and indeed in all civil cases, must be based on evidence. As Lord Justice Munby (as he then was) has said in Re A (A child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ 12: “It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation“.
I am not, however, persuaded by any submission on behalf of F that M pursued the allegations of radicalisation to add to the gravity of the case against F “because someone for his background is an easy target.” M had converted to Islam herself before she met F, but from M’s point of view F is someone who has seriously assaulted, attacked and threatened her. He has tried to control and intimidate her even after she left him and I do not doubt that M felt that F had used his religion to justify his appalling behaviour towards her. She probably said so to the police. I did not hear any evidence about how the investigation of F originated in Gloucestershire and it is not possible to exclude the possibility that the police had seen in what M told them evidence of extremism and had escalated the case as a result. Certainly some of his behaviour was bizarre and had included posing in a museum and elsewhere in battle-dress and with weapons; he had purchased night-vision goggles, gas masks and bullet proof clothing and had shown an active interest in the conflict in Syria (but not in the actions of Daesh per se) so it would have been that behaviour about which M properly spoke to the police.
F’s faith and his practice of Islam is a matter for him and his conscience. I was left with no clear idea of the extent and nature of his faith. At first he refused to swear on the Qur’an but when I asked him why he then did so. During his evidence he broke the Ramadan fast, and those, and other aspects of his behaviour, were inconsistent with strict religious observance. I do not doubt, therefore, that he, personally, chose to use his religion both as a means of justifying his violent and controlling behaviour and as a way of intimidating M; such as by saying that women who left the faith would be killed and that if M left him she would be killed.

The father wanted the children to be brought to see him in prison, but the Judge rejected that and made the unusual (but completely warranted) order that father should have no contact.

There is no evidence before the court that would permit me to conclude that F would be able to promote the children’s interests if contact was allowed; or that he is capable of behaving in a manner that would produce a safe and nurturing environment for these two little boys whilst he remains in denial as to his actions and the impact of those actions. Moreover, he has continually been negative and hostile towards M and, even if he were able to have contact without harming M or attempting to take the children, the evidence is that he would use any and every opportunity to undermine her, as their mother, during contact.
The impact of direct contact on M is something to which the court can properly have regard, and I take regard of the considerable impact F’s behaviour has had on M already. I have made findings that the extent of the fear he has induced in M has led to her curtailing the activities she and the children can, and do, participate in and has effectively limited their integration into the wider community in which they live. I have no doubt that any order for contact would have a profoundly negative affect on M and would seriously undermine the quality of care she is able to give the children. The guardian is “of the view that these are exceptional circumstances which would, sadly for the boys, merit there being no direct contact.” It is the conclusion of this court that there is no arrangement or available way in which contact can take place so that the children would be safe from the risk of significant harm from F; it remains a fact he has already harmed their mother and caused them to leave their home on more than one occasion.
F says he wants to have contact with the children in prison, one can see the benefit for him, particularly in regard to his argument against deportation, but any such contact would be without benefit for the children. They have no relationship with F (because of his behaviour) and so these very young children would need to be brought to prison to be introduced to him; there is no-one to carry out this sensitive work with the children. It is highly unlikely, given their previous assessments, that any agency, local authority or child-care professional would undertake this work or consider it to be in the children’s best interests. Moreover, F is likely to be deported to Egypt in the short term so the likely distressing effects on the children and their mother would be for the short term gain for F alone. In any event, the court will not order contact to take place, even if F were to avoid deportation, because the risk he presents is overwhelming.

2 Comments

Posted in case law, international, private law and tagged 2016 EWFC 40, allegations of radicalisation, change of child's surname, domestic violence, Ms Justice Russell, order for no contact, private law, radicalisation, Re A and B (Children: Restrictions on parental responsibility: Extremism and radicalisation in private law) 2016. Bookmark the permalink.

Bugs, bunny

Posted on May 23, 2016 by suesspiciousminds

M v F (Covert Recording of children) 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/29.html

Mr Justice Peter Jackson, in the High Court, dealing with a case where a parent in a custody dispute made clandestine recordings of the child – and because the father wanted to know what the child was saying during meetings with the social worker and Guardian, he placed bugs on the child’s clothing.

It is almost always likely to be wrong for a recording device to be placed on a child for the purpose of gathering evidence in family proceedings, whether or not the child is aware of its presence. This should hardly need saying, but nowadays it is all too easy for individuals to record other people without their knowledge. Advances in technology empower anyone with a mobile phone or a tablet to make recordings that would be the envy of yesterday’’s spies. This judgment describes the serious consequences that have arisen for one family after a parent covertly recorded a child in this way.

Let us have a look at the recording that was done

The dispute between the parents was bad enough for the local authority to have become involved and for the court to have appointed a Children’’s Guardian for Tara. All in all, the proceedings ran for 18 months and during that time there were a number of meetings between Tara and her social worker, a family support worker and the Guardian. Unfortunately, the father and his partner were determined to know what the child was saying at these meetings and also to record what the professionals were saying. As a result they embarked on a plan of action described in this extract from the original judgment:

“”The father’’s recordings19. At a core group meeting with the social workers in late January 2016, the father disclosed that he had been making covert recordings since the end of 2014. In a statement dated 21 February, he produced a number of transcripts dating back to November 2014.

20. At the outset of the hearing, I was asked to rule on whether the father’’s recordings should be admitted in evidence.

21. The first task was to establish the facts, and I heard from the father in evidence on this point specifically. Having done so, it emerges that the facts are these:

(1) The father produces transcripts of 16 conversations running to over a hundred pages(2) All but one of these are conversations involving Tara

(3) The exception was a local authority pre-proceedings meeting (see below)

(4) A significant number of recordings have not been transcribed or produced

(5) The first recording was made in November 2014, the last in March 2016

(6) The proceedings had been ongoing for well over a year before the existence of the recordings was revealed

(7) At least four devices were used

(8) At least two of these were small recording devices (bluntly, bugs – the one I was shown was no larger than 3 x 1.5 cm and can be bought on the internet for a few pounds)

(9) The other devices were iPhones or iPads belonging to the father and his partner

(10) The bugs were bought by the partner

(11) She sewed them into to a false bottom to the breast pocket of Tara’’s school blazer

(12) On some occasions a second bug was sewn into Tara’’s school raincoat and used at the same time to maximise the chance of picking up conversations

(13) On a day when a meeting was happening, the partner sewed the bug(s) into Tara’’s clothing just before she left for school – any earlier and the battery would have run out by the time a meeting took place at the end of the school day

(14) The bug would therefore be running all day, recording everything that Tara did

(15) Tara was therefore recorded at school, when with her teachers and friends, and at the contact centre when she went to meet her mother or speak to her on FaceTime

(16) Recordings were also made at home, when the social workers and Guardian visited

(17) At the end of the day, the bug(s) would be removed from the clothing so the contents could be downloaded

(18) The partner would make transcripts of what she and the father regarded as relevant conversations

(19) Other conversations were recorded by the father using his iPhone as a recording device

(20) He would leave it running in the breast pocket of his shirt or hold it, apparently innocently, in his hand

(21) At other times, when professionals were visiting the home, the father or his partner would leave an iPad or iPhone running in the top of the partner’’s handbag in the room where the conversation was likely to occur

(22) In February 2016, the father attended a pre-proceedings meeting with the social workers. They challenged him about his recently revealed use of recordings and he turned his phone off. He did not tell them that he had a second device running, with which he continued to record the meeting.

(23) Importantly, the father and his partner state that Tara has never been aware that she has been bugged

22. The father said that he had done all this to protect his daughter, but had not considered the consequences. Initially, he had not intended to disclose the fact that he had been making the recordings. His motivation was to find out about abuse and to hear Tara saying things to social workers that she might not say to him. He and his partner wanted to know what she was saying to them. They wanted to understand why she was so reluctant to see her mother. As matters developed, he wanted to be able to show that Tara was saying things to professionals that they were not reporting or acting on. Although the partner took most of the practical steps, it was planned together and he was responsible.

23. The father accepted that at an earlier stage he had carried out surveillance on the mother, including by using a private detective and by monitoring the in-car tracker device. He gave “”no comment”” answers to questions about accessing her private emails or iPad location service, but he admitted to accessing and making a screenshot of her private Facebook page when it was open on Tara’’s iPad. He had also taken hundreds of photographs in and of her home during the financial proceedings in order to substantiate his claim that she had a live-in boyfriend.

24. Having heard the father’’s evidence, I ruled that the recordings should be admitted and deferred explanation until now, so that the possible relevance of these actions to Tara’’s welfare could be considered in the wider context.

25. The mother did not oppose the admission of the recordings. Counsel on behalf of Tara drew attention to the court’’s powers under FPR 22.1 to control the evidence it receives. This includes the power to exclude evidence that would otherwise be admissible. She urged that as a matter of public policy conduct of this kind should be discouraged and that the resulting evidence should only be admitted in exceptional circumstances. Moreover, the material that the father wished to file was selective. If the court did not exclude the evidence obtained in this way, it would send the wrong message to other parents. At the same time, she contended that the fact that the recordings were made is in itself relevant and, indeed, important when considering Tara’’s welfare. She submitted that the recordings were not unlawful and do not constitute a breach of the Data Protection Act 1998 because they fall within the ‘’domestic purposes’’ exemption provided by s.36:

36 Domestic purposes.

Personal data processed by an individual only for the purposes of that individual’’s personal, family or household affairs (including recreational purposes) are exempt from the data protection principles and the provisions of Parts II and III.

26. I have not heard further argument about this, and it is unnecessary to determine whether the father’’s actions were illegal. That said, I believe that there may be good arguments for saying that the covert recording of individuals, and particularly children, for the purpose of evidence-gathering in family proceedings would not benefit from the domestic purposes exemption. Uneducated, I would assume that the exemption is intended to protect normal domestic use, which this is not.

27. In this case, I am in no doubt that the recordings were rightly admitted. The manner in which they were made is directly relevant to an assessment of the parenting offered by the father and his partner. They are so extensive that it would be unreal to exclude them, particularly after I had heard evidence from the father about their creation. It would be theoretically possible for the court to receive evidence of the making of the recordings but not their contents, but this would risk unbalancing the evidence if the contents were in fact of any value.

28. This case is a striking example of the acute difficulties that can be caused by adults recording children for the purposes of litigation. From the time the recording programme was revealed, everyone involved in these proceedings, except the father and his partner, immediately realised that it was wrong. The mother, rightly in my view, described it as “”unbelievable””. Even so, the full extent of the deeply concerning ramifications for Tara’’s welfare only became apparent as the hearing progressed. By the final day, even the father appeared to be beginning to understand the difficulties that he had created not just for his case but for his child.

29. This issue has also meant that the difficult question of whether Tara should be told that she has been recorded must be faced. It has also compounded the costs of the proceedings.””

Moving on, were the recordings useful to the Court?

The main reason for changing Tara’’s home base was the conclusion that the father and his partner could not meet her emotional needs as main carers. The recording programme was not the only indicator of this, but it was a prominent one. The mother was entitled to say that she objected to her daughter being brought up by someone who sewed recording devices into her clothing, something she described as “”really disturbing””.
Next to consider are the consequences for the proceedings of a large mass of material being produced at a late stage. The recordings put forward were selective and were not at first professionally transcribed. In the end, the issue increased the length and cost of the hearing, yet it did not produce a single piece of useful information. Instead:

i) It further damaged relationships between the adults in Tara’’s life.ii) It showed the father’’s inability to trust professionals.

iii) It created a secret that may well affect Tara’’s relationship with her father and step-mother when she comes to understand what has happened. As I said:

“”She is also at risk of harm arising from the recordings. I accept the Guardian’’s compelling assessment that it would be extremely damaging for Tara if the information comes to her in future in some uncontrolled way, something that is likely to cause her confusion or distress and seriously affect her ability to trust people.

I also accept the Guardian’’s analysis that the safer course is for Tara to be informed of the facts in a sensitive way in the relatively near future, once the immediate aftermath of this hearing has passed. There then needs to be a concerted effort by the family and the professionals to make sure that the information is contained within the group of people who will need to know it in order to carry out their statutory responsibilities. The consequences for Tara and her whole family of the father’’s behaviour coming to wider knowledge could be very serious, with unpredictable social and legal outcomes. However, the alternative – a conspiracy between those in court and the court itself to keep the matter secret from Tara and everyone else – is unacceptable in principle and unworkable in practice. It is a problem that needs to be faced and that is best done at a time when Tara is surrounded by professionals who know her situation and are well placed to help her make sense of it.””

iv) As indicated, the family’’s standing in the community has been put at risk. It is not hard to imagine the reaction of other parents at the school if they learn that their children were being recorded as a result of talking to Tara or even being near her, and the consequences of that for the father and most of all for Tara.

v) It involved an enormous waste of time on the part of the father and his partner in setting up the recordings and in transcribing them.

vi) It significantly escalated the cost of the proceedings. The father had to pay to have the recordings transcribed (£1,500) and on top of that I ordered him to pay the proportion of the mother’’s costs attributable to time spent on the recordings (£9,240). At the same time, there is an issue about whether the family can afford to pay Tara’’s school fees.

Anyone who is considering doing something similar should therefore first think carefully about the consequences.

Given that for large parts of Tara’s school day, every single thing she said (and was said to her) was recorded, these actions have invaded the privacy of every other child that she came into contact with. If the parents of those children learn that father did this, I should imagine they’d take an exceptionally dim view of it.

The Judge made some general observations about clandestine recording

This judgment does not relate to the practice of recording adults covertly for the purposes of family proceedings, or of recording children in other ways. Experience suggests that such activities normally say more about the recorder than the recorded (as in Re C [2015] EWCA Civ 1096), but there are so many possible circumstances that it is not possible to generalise. I note that the Cafcass Operating Framework (at 2.27) says that its officers should have nothing to fear from covert recording, but should bring it to the court’’s attention if they become aware of it, and ensure that it is dealt with methodically. That is no encouragement to the production of recordings, merely a reflection of situations that sometimes arise.
The Cafcass framework also mentions (at 2.29) that one form of covert recording may be the concealing of a device on a child, but makes no comment about that. In my view, that scenario does deserve comment of the kind that appears in the first sentence of this judgment.

The judgment is NOT authority for parents not being able to openly request to tape meetings with social workers – this is about covert recording of the child.

8 Comments

Posted in case law, private law and tagged 2016 EWFC 29, bugging a child, clandestine recording, covert recording, Justice Peter Jackson, m v f (covert recording of child) 2016, mr justice peter jackson, private law. Bookmark the permalink.

Private law, infinite appeals and IT naughtiness

Posted on July 23, 2015 by suesspiciousminds

The case of Re N (Children) 2015, http://www.bailii.org/ew/cases/EWFC/OJ/2015/B98.html 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.

On 17^th 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”.
On 18^th 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)

So it was that on 11^th 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.
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.
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

Ground 10
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”
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.
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.
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.
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.
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.
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.
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

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.
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.
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

6 Comments

Posted in case law, fact finding, private law and tagged allegations, appeal, District Judge, judicial judgment, private law, re n children 2015. Bookmark the permalink.

Care proceedings by the back door

Posted on August 3, 2014 by suesspiciousminds

The Court of Appeal decision in Re W (Children) 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1065.html

This was an appeal from a mother, about a private law decision that her child should live permanently with the grandmother. The placement with the grandmother had come about by the mother signing a Written Agreement with the Local Authority that the child should live there. [see previous post]

There are some obvious, and well-known points about whether such a placement is a section 20 placement (in which case the Local Authority have to do a fostering assessment of grandmother and pay her fostering allowance) or a private family arrangement (in which case they don’t). As a general rule of thumb – if the Local Authority’s fingerprints are all over the placement (as they were here) then it is almost certainly going to be a section 20 placement – whether anyone involved wants it to be or not.

That wasn’t the thrust of this appeal though.

That was, rather, that by private law proceedings where the child was placed with grandmother (and the Local Authority had never done an assessment of the mother to see if she could have the child back) this child was permanently moved from mother to grandmother without any of the safeguards that such a proposition would have had in care proceedings. Were these, in fact, care proceedings by the back door?

The children had been placed in July 2012, the proposed assessment of the mother by the Local Authority never took place, and the mother made an application for a Residence Order (as it then was) in May 2013

A particularly odd aspect of these situations is that when the private law case goes to Court, when the Court asks for an independent section 7 report (to make recommendations for the child’s future), such report is usually sought from the Local Authority (rather than CAFCASS) because of their historical involvement. Can you spot an obvious flaw in that aspect, if it is the Local Authority who engineered the move from mother to grandmother?

This is what the Court of Appeal say about their section 7 report

The mother sought the return of the children. Eventually, after mediation had failed and following difficulties in obtaining legal funding, the mother issued proceedings on 28 May 2013 seeking a residence order and the return of the children to her care. The local authority was ordered to provide a section 7 report. Written by Ms Nesbitt, it was dated 4 October 2013. An addendum section 7 report was written by her successor, Ms Fitzgerald, dated 13 December 2013.

Ms Nesbitt expressed the view that the children should remain with the paternal grandmother under the auspices of a residence order. For present purposes it is Ms Fitzgerald’s report which is more significant. In paragraph 4.1.2 she said:

“Further assessment of [the mother’s] current ability to meet the needs of the children is required in order to provide evidence that she has made positive changes and more importantly is able to sustain such changes in the longer term.”
In paragraph 4.3.1 (paragraph 4.6.1 was to much the same effect) she said:

“… there is little evidence to support the children returning to their mother’s care … It is therefore the view of the Local Authority that Family Resource Team intervention is required in order to support [the mother] and her relationship with the children to include work around routines, boundaries and the appropriateness of comments made to the children by [the mother] … This intervention will enable the Local Authority to assess [the mother’s] current ability to meet the needs of the children. [The mother] reports that she has made positive changes by accessing counselling and evidence of those positive changes is required by the Local Authority in order to establish [her] current ability to meet the needs of the children in the immediate and longer-term future.”
In paragraph 4.8.1 she said:

“As previously indicated, the Local Authority are of the view that intervention is required from the Family Resource Team who will work with [the mother] and the children in relation to routines, boundaries and inappropriate comments made to the children. This will enable the Local Authority to further assess [the mother’s] current and longer-term ability to meet the needs of the children”
In paragraph 4.9.1 Ms Fitzgerald recorded a counsellor describing the mother as “engaging well with the service” which, as she commented, “demonstrates [her] willingness to engage with services to address concerns.” In paragraph 4.10.2 she observed that “mother’s current ability to meet the needs of the children remains un-assessed” and continued:

“it is the view of the Local Authority that Family Resource Team intervention is required in order to assess her ability to meet the needs of the children.”
Ms Fitzgerald’s overall view was expressed in paragraph 4.10.3:

“It must be acknowledged that if the children were to grow up in the care of the 2nd Respondent and not the Applicant mother, this has the potential to affect their identity and they may feel a sense of rejection from their mother. That said, at the present time, the un-assessed risk of placing the children in their mother’s care, far outweighs the risk of them remaining in paternal grandmother’s care and the ‘potential’ for this to have an impact upon their identity/emotional wellbeing.”

In light of Ryder LJ’s withering comments in Re P and B about the use of ‘unquantified’ as a perjorative term, the ‘un-assessed risk’ here is somewhat dubious. Particularly since it was unassessed precisely because the Local Authority had not assessed it.

Those representing the mother, quite rightly, sought that assessment of the mother’s parenting and any risks. That would be a basic foundation of any care proceedings and something that would be vital if deciding whether children should live permanently away from a mother. But in private law proceedings, it can often be rather more of a ‘beauty parade’ – which person is in a better position to provide care for the children here and now

The hearing before the Recorder commenced on 9 January 2014. We do not have a transcript of the hearing but Mr Ben Boucher-Giles, who appeared on behalf of the mother before the Recorder, as he subsequently appeared before us, has prepared a very helpful case summary for our use which sets out what we need to know. It has been circulated to the other parties and to the local authority, who have raised no objection and identified no errors.

The Recorder heard evidence from Ms Fitzgerald and her team manager, Ms Richardson. In cross-examination Ms Fitzgerald accepted that the mother was committed to her children and was prepared to work with professionals. She re-iterated that the local authority had not assessed the mother and could not therefore say that she had made sufficient progress to prove that she could safely care for them. In answer to the specific question whether there was any event since July 2012 which gave her any specific cause for concern in relation to the mother or her ability to care for the children, Ms Fitzgerald accepted that she could not think of anything in particular. She indicated that a delay in the proceedings – the assessment and associated work might take between 12 and 16 weeks – would have a “high potential of emotional impact” on the older child, though this was no more than the usual consequence of delay.

Ms Richardson expressed concern about the lack of assessment and accepted that the local authority had failed in its duty to provide the court with the information it required. She indicated that rehabilitation of the children to the mother “would not be beneficial until perhaps after CAMHS had reported – something may arise.”

Unsurprisingly in these circumstances, Mr Boucher-Giles applied at the conclusion of this evidence for an adjournment for the preparation of a full assessment of the mother’s parenting abilities. His argument, as recorded by the Recorder in the judgment she gave refusing his application, was that the court could not make a decision because it did not have any information about the mother and her ability to care for the children. The application was resisted by the paternal grandmother on the basis that the best interests of the children were served by the matter being brought to a conclusion, in circumstances where the local authority had indicated that it would not ‘walk away’ even if the case came to a final conclusion.

You can guess that the Recorder refused the adjournment, otherwise there wouldn’t be an appeal (you may take it that every sentence that I have underlined could be read aloud in a tone of total shock and wonder0

The Recorder dismissed the application. She explained why:

“In seeking that adjournment and in considering whether or not I should allow it, I must take account of various factors, one of those of course being that delay is inimical to these sort of proceedings. They need to be brought to a conclusion as soon as possible. I have to weigh against that, the fact that [the mother] has not been subject to any detailed assessment, the fact of the matter is that the court is in the position today where it has sufficient information to consider what is in the best interests of the children and if I were to adjourn where would we be then? We would be at a position where the local authority might be saying by virtue of their role in these proceedings that the matter should move to overnight staying contact. It does not mean that they would be in a position to make a final recommendation, not that anything is ever final in the lives of children because things move and things change, but I take the view that to delay these proceedings any further, these proceedings having been ongoing for some time, to delay them any further for the purpose of an assessment which might not be able to come to a final conclusion and might not be able to be effected due to the involvement of CAMHS with the older of the two children”.
The hearing proceeded. The Recorder heard oral evidence from the mother and the paternal grandmother. Cross-examined on the point, the paternal grandmother, who said she had spent a great deal of time in the mother’s company over the past 18 months, could not think of anything that had happened during that time which gave her cause for concern in respect of the mother or her ability care for her children, apart from some missed contacts.

In closing submissions Mr Boucher-Giles again invited the Recorder to adjourn for an assessment of the mother.

At the end of the hearing, on 10 January 2014, the Recorder gave judgment. She summarised the history of events, recording that, on the mother’s own evidence, she had had problems in the past with ill health, post natal depression and drug misuse and that, as a result, she had not been able to offer adequate care to the children. She described how matters had “almost reached crisis point” in July 2012. She described the mother’s position as being that she had only ever envisaged a temporary arrangement and that by April 2013 she was in a fit and proper position to deal with looking after the children herself.

The Recorder then said this:

“It has become apparent as well that there have been failings in social services dealing with this case and that was acknowledged by the team leader Miss Richardson when she gave her evidence that in fact no assessment of the mother has at any time been undertaken since the mother has recovered from all the difficulties that she had.
However I have to look at the welfare checklist and I have to decide this case on the basis of those matters”.
She drew attention to the fact that the older child appeared to be saying that she wished to live with her grandmother. She directed herself that the child’s welfare is the paramount consideration and that she had to have regard to the general principle that any delay is likely to prejudice the welfare of the child.

The Recorder reiterated her reasons for refusing an adjournment, saying:

“Clearly delay is a matter which I have to take account of if it is likely to prejudice the welfare of the child or the children and I take the view that any delay in this case, any extension of these proceedings with all the necessary conflicting views of all the parties, would mean that it is likely, it is probable that certainly [the older child] would be adversely affected in terms of her emotional wellbeing by knowing that these proceedings were on going.
It is clear as well that such a delay is an open ended delay, because no-one can say at this stage as to how long, as to what the outcome of overnight contact would be, if it was in fact recommended by the social services department.
… I take the view that delay would not be in the interests of these children, it would not be productive in terms of their welfare and it is for this reason that [the proposition that I should] adjourn for a period of time, is not one which lends itself to me.”

She then said this:

“Can I say that I accept that there is no assessment of the mother as she is now. I do not make an assessment of her because I have only had the opportunity of seeing her in the witness box and my decision is based not on the fact that I have made an assessment of her, it is based on the fact that I feel that delay in the case would be prejudicial to the children.
One can only speculate as to what the outcome of that assessment will be“.
The Recorder then considered the welfare checklist, saying in the course of this:

“The court must also take into account the children’s physical, emotional and educational needs, well it is perfectly plain to me and I think it is even accepted on behalf of the mother that those needs are being met by the paternal grandmother at the present time. On the other hand so far as the mother is concerned I have no evidence before the court that she is able to provide them with the same level of support in terms of their physical, emotional and educational needs.”
Having found that in the past the children had suffered harm as a result of the mother’s inability to cope, the Recorder continued:

“I cannot say whether they are at risk of suffering in the future, it is probable that matters will move forward in fact it is inevitable that matter that matters will move forward but I am not in a position to make any finding as to whether or not they are at risk of suffering in the future.
What I also have to take into account is how capable the mother and the grandmother are in relation to the question of meeting the children’s needs. Well as I have already indicated it appears to be accepted and in fact I make a finding that the grandmother is in fact meeting the needs of these children and has done so at least for the last eighteen months and possibly for longer so far as [the older child] is concerned.
Taking all those matters into account I then have to decide what is the proper order in this case.
This is a case where the mother has, I have no doubt the best of intentions at heart, but I am not satisfied that it would be appropriate at this stage to make an immediate order granting her residence and so in those circumstances I dismiss her application for residence.
I then have to consider what orders I should make. At the present time the paternal grandmother has no legal standing because she has no orders and nothing in place at the present time. I intend therefore to make a residence order in favour of the paternal grandmother.”

The application for appeal was made, and Ryder LJ gave permission, identifying four important principles

The mother’s appellant’s notice was filed on 31 January 2014. Considering the application for permission on the papers, Ryder LJ had the benefit of Mr Boucher-Giles’ powerful skeleton argument. In giving permission, Ryder LJ observed that the grounds of appeal and skeleton argument at least four potentially significant issues, which he described as follows:

“(a) whether a court dealing with a private law children application is obliged to deal with the proportionality of the order as an interference with art 8 rights – the horizontality argument;
(b) whether the judge should have attached any greater significance to the position of a mother as against a grandmother – the imperative of being brought up by a parent if that parent is a good enough parent even though the grandmother may be better;
(c) whether the judge’s refusal to order an adjournment to obtain a section 7 assessment report from the local authority deprived the mother of the evidence that might demonstrate her capability;
(d) how the court should deal with section 20 accommodation cases where the local authority is acting as the decision maker but not taking care proceedings (and has not assessed the parent when arguably it should have done so).”
Ryder LJ “invited” the local authority to intervene in the appeal to make submissions in relation to issue (d). It has declined to do so.

Quite so. The vital ones of public interest are (a) (c) and (d) – point (b) already has the benefit of a lot of settled law.

The Court of Appeal determined the appeal solely on ground (c), leaving us in limbo as to the important questions in (a) and (d) until they arise again. The appeal was granted and the case sent for rehearing.

The stark facts here are clear and obvious. There had been no assessment of the mother. Ms Fitzgerald’s report was peppered with the recognition that an assessment was “required” in order both to provide evidence that the mother had indeed changed, and was able to sustain that change, and to assess her current and longer-term ability to meet the needs of the children. The Recorder acknowledged that there had at no time been any assessment of the mother, made clear that she herself had not made any assessment of the mother, and, most strikingly of all, found that, to repeat:

“I cannot say whether [the children] are at risk of suffering in the future … I am not in a position to make any finding as to whether or not they are at risk of suffering in the future (emphasis added).”
It is quite apparent that the Recorder’s decision was driven by her concern about delay. She says so explicitly in the passage, already cited, where she said:

“my decision is based not on the fact that I have made an assessment of her, it is based on the fact that I feel that delay in the case would be prejudicial to the children.”
That is elaborated in the passage where she said:

“any delay in this case, any extension of these proceedings with all the necessary conflicting views of all the parties, would mean that it is likely, it is probable that certainly [the older child] would be adversely affected in terms of her emotional wellbeing by knowing that these proceedings were on going.”
As to this I merely observe that one needs to bear in mind what Ms Fitzgerald had said in evidence (see paragraph 8 above) and that the Recorder’s comment about the delay being “open ended” (paragraph 16) involved little more than an educated guess – what the Recorder herself described (paragraph 17 above) as speculation – as to what might be revealed by the strictly time-limited assessment being proposed by Mr Boucher-Giles. There is also, in my judgment, much force in his submission that the Recorder focused too much on the short-term disadvantages without addressing, as she should, the medium and longer term implications.

The simple fact, in my judgment, is that the Recorder fell into a double error. By refusing an adjournment for the assessment which had never taken place, which the local authority acknowledged was required and which Mr Boucher-Giles was understandably pressing for, the Recorder denied herself vital evidence to fill what on her own findings were serious gaps in her knowledge of the mother and of the mother’s ability to care for the children. This was, as Mr Boucher-Giles submitted, an essential piece of information if the Recorder was properly to do her duty in accordance with section 1(3)(f) of the Children Act 1989. On top of that she placed far too much weight on a view as to the consequences of delay which was not borne out by the evidence.

This all fed into an approach which ended up being unfair to the mother and went far in the direction of effectively reversing the forensic burden. I have in mind in particular the passage in her judgment where the Recorder, having correctly found that the children’s needs were being met by the paternal grandmother, went on to note that:

“On the other hand so far as the mother is concerned I have no evidence before the court that she is able to provide them with the same level of support in terms of their physical, emotional and educational needs.”
Indeed, but why was that?

It follows that, for all these reasons, the mother in my judgment succeeds on issue (c) and accordingly succeeds on her appeal.

The Court of Appeal then went on to have a go at the Local Authority (deservedly so in this case)

Moreover, the “Agreement” was expressed, more than once, to be “whilst further assessments are completed”, yet it seemingly remained in place even after the assessment had been cancelled. And the children were not returned to the mother even after she had asked. If this was a placement under section 20 then, as my Lord pointed out during the hearing, the mother was entitled under section 20(8) to “remove” the children at any time. Why were they not returned to her? I can only assume it was because the local authority believed that the arrangements were not within section 20, so that it was for the mother, if she wished, to take proceedings, as in the event she had to, against the paternal grandmother. But if this was so, why did the local authority arrogate to itself effective decision-making power as to whether the mother’s contact with the children should be supervised or not? And why was the local authority as recently as January 2014 seemingly arrogating to itself decision-making power as to whether or not there should be overnight staying contact?

The local authority’s decision to decline Ryder LJ’s invitation to intervene makes it impossible for us to get to the bottom of these issues. The picture we have, however, is disturbing. I can well understand why Mr Boucher-Giles complains that the local authority has in effect instigated and resolved what ought to have been public law proceedings without legal authority to do so, sidestepping the need to prove ‘threshold’ and thus avoiding the important protections against State interference which Part IV of the Children Act 1989 provides. The mother, he says, was by virtue of the State’s actions placed in a position whereby her children were being cared for, against her wish, by the paternal grandmother and without any legal order in place. I place these submissions on record without expressing any concluded view, though agreeing with Mr Boucher-Giles that it would be a matter of concern if ‘back door’ care proceedings such as this were to become prevalent.

It is a great shame that the Court did not get to grips with the issue of ‘back door care proceedings’, but one can see why the appeal so obviously suceeds on point c that it was not strictly necessary.

8 Comments

Posted in case law, private law and tagged appeal, care proceedings by the back door, Court of Appeal, private law, quasi care proceedings, re w (children) 2014, re w 2014, section 20 v private arrangement. Bookmark the permalink.

Children giving evidence

Posted on July 22, 2014 by suesspiciousminds

This is a Court of Appeal decision, arising from a private law case in which there was an issue as to whether a child should give evidence as part of the forensic exercise of determining the truth of what happened.

Re B (Child Evidence) 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1015.html

John Bolch does an excellent summary here

http://www.familylore.co.uk/2014/07/re-b-children-giving-evidence.html

The case builds on, but doesn’t change the principles set down by the Supreme Court in Re W http://www.bailii.org/uk/cases/UKSC/2010/12.html

The fundamental difference is that in Re W, the potential child witness was the subject of proceedings (thus the welfare of the child was a legitimate component of judicial decision-making, though not the paramount consideration), whereas this was a sibling/half-sibling of the child in question and thus wasn’t covered by that umbrella of welfare. Other than in the broader philosophical sense that a Court dealing with the welfare of a particular child ought not to cause harm to another child in that pursuit of a decision. Also, in Re W, the child had given a video interview to the police and that could potentially stand as evidence, in this one, the child had not given any interview and the issue was whether and how the child’s evidence ought to be placed before the Court if at all

The original trial Judge had decided that a series of questions ought to be drawn up and the CAFCASS adviser ask them of the child and record the answers, deciding to leave the issue of live evidence to one side until that information was available.

I’m not quite sure why the appeal was brought before that decision was made, or how the Court of Appeal dealt with it so quickly (it feels a bit premature to me, but nonetheless they did)

The Court of Appeal backed the decision of the trial judge to proceed in that way, but were keen to stress that this was not sanctioning an opening of the floodgates (as Jack of Kent has pointed out, floodgates opening is actually a good thing contrary to the metaphor – they are SUPPOSED to open).

I would not expect our endorsement of Judge Cameron’s decision to open the floodgates, leading to a widespread practice of calling children as witnesses in cases such as this one. The Supreme Court did not consider that their decision would lead to children routinely giving evidence, predicting that the outcome of the court’s balancing exercise, if it was called upon to adjudicate upon such matters, would be the conclusion that the additional benefits in calling the child would not outweigh the additional harm it would cause him or her. I am sure that the natural sensitivity and caution of the family courts, which originally generated the now defunct presumption, can be relied upon to ensure that matters are approached in a way which properly safeguards all the interests involved.

In addition to the argument that G’s evidence was peripheral, it was also argued on F’s behalf that it was wrong to have embarked upon the Family Court Adviser path because it would (or should) lead nowhere as the shortcomings in G’s evidence rendered that evidence of little value. The shortcomings were said to arise from matters such as G’s age, the lack of a contemporaneous statement from her, the passage of time since the incidents, and the likely influence upon her account of having lived in the meanwhile with M who was negative to F.

I recognise the logic in the submission that the court should not involve a child in steps designed to explore the possibility of him or her giving evidence unless satisfied that the evidence is likely to be of value. However I would not take such an absolute position. It can be difficult to take a reliable decision in a vacuum and there can sometimes be merit in a step by step approach which enables more information to be gathered before deciding irrevocably. In deciding what steps to take, the apparent nature, quality and relevance of the evidence are obviously material but the court may not know enough in the early stages to form a concluded view about matters such as this.

In the light of the Court of Appeal’s decision to nuke fact finding hearings in public law from orbit, a decision I respectfully think is something one could happily eat with cheese, I thought these remarks from the Court of Appeal were interesting

The pursuit, in public and private children proceedings, of “the truth” about past events is not an abstract endeavour. What happened in the past is the foundation for informed decisions about the future, including decisions as to what, if any, risk of harm a particular course of action may present to the child who is the subject of the proceedings. The more reliable the court’s findings as to what happened in the past, the more reliable should be the prognosis for the future and the better the court should be able to judge where the welfare of the subject child lies.

Quite so.

9 Comments

Posted in case law, fact finding, private law and tagged child witness, children giving evidence, Court of Appeal, fact-finding, private law, re b (child evidence) 2014. Bookmark the permalink.

After ten years of war, peace breaks out

Posted on February 18, 2014 by suesspiciousminds

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

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

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

This opening is worth reading, for a start

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

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

Why did the problems arise?

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

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

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

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

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

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

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

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

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

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

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

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

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

7 Comments

Posted in case law, private law and tagged high conflict private law disputes, j and k (children : private law) 2014, j and k 2014, mckenzie friend, private law, pro bono. Bookmark the permalink.

“Man of Straw and costs”

Posted on August 13, 2013 by suesspiciousminds

Making a costs order in private law proceedings against a man with no ability to pay – the Court of Appeal decision in Re G (Children) 2013

http://familylawhub.co.uk/default.aspx?i=ce3352

Although the appeal was from a decision made by a Court local to me, I have had no involvement of any kind in the case.

The proceedings related to long-running private law proceedings, and the Court findings in relation to father’s conduct were pretty scathing

Within the proceedings he had made very serious but utterly groundless allegations against the mother, which obviously took time to resolve and were unpleasant. He raised an entirely false allegation of racism against the NYAS worker who prepared a report in the case (raising this only after the report was received and unfavourable to him) , had effectively been using the court proceedings to harass and intimidate the mother, had made groundless complaints about her to the police

in short she considered that the length of the proceedings, and the fact they had been driven to consider matters of detail at every turn, had been caused by the father’s actions and that he was engaged in a course of action designed to manipulate and harass the mother by using the proceedings as his weapon of choice.

It is not altogether unsurprising in that context that the father lost his case, and was made subject to a section 91(14) order exercising judicial control over his ability to make further applications.

The Court of Appeal were entirely satisfied that all of this was justified by the findings that the Court had made, having heard the evidence.

The next issue was however, the Judge having made a costs order against the father. The mother was publicly funded, the father acting as a litigant in person, and having no income.

This was the portion of the original judgment dealing with that application.

“I am dealing with an application for costs. It is made by the mother against the father for the costs which she has incurred with the benefit of public funding in this protracted litigation which began life in October 2009. Mr Bergin has stressed that this is not an application made with any pleasure by the mother. It is not therefore a vindictive application. But Mr Bergin properly has to be mindful of the public purse, and the Legal Services Commission in funding the mother’s litigation has been put to enormous expense. So I look at what was behind all of this.

73. The father says he should not have to pay anything. He tells me that notwithstanding the judgment, which has come down heavily against him in terms of being untruthful, he maintains that he has told the truth all the way through and has simply wanted to do right by his children and see his children, and he feels that he had not alternative but to bring the application. I reject the father’s submissions about what prompted the litigation. It is almost unbelievable that in August 2009 this father had an order by consent that guaranteed him regular contact with his children. He says he had to apply in October 2009 because had had lost his job and did not have any money. In my judgment, it was not necessary to launch these proceedings. But beyond that the father has used these proceedings as a vehicle for getting at the mother. At every step of the way he has criticized her and has made allegations about her and he has completely disregarded the interests of the children.

74. I am conscious that the father says he is of limited means. He lives in rented accommodation and he is in receipt of statutory benefits. So it may be that any order for costs could never be enforced. But the question of enforceability is separate. I am satisfied that the case brought by the father had absolutely had no merit. The application followed on a compendious order that gave the father everything he wanted bar calling it a shared residence order. In the three years since his application the father has gone out of his way to make spurious allegations which the court and others have had to investigate and he has abused the court process by using it as a vehicle to make the mother feel insecure and vulnerable. I am satisfied that, unusual though it is, an order for costs is entirely appropriate and the order will be that the father shall pay the costs of the mother throughout this application from the date of issue. Those costs are to be subject to a detailed assessment and the question of enforcement of costs will be determined separately.”

And this is what the Court of Appeal say about the judicial determination that a costs order was appropriate

15. It is apparent to me, in reading those paragraphs, that the judge had three basic reasons in mind in making the costs order that she did. First of all, towards the end of paragraph 73, she finds that it was “not necessary to launch these proceedings”. Secondly, she finds that the father has “used these proceedings as a vehicle for getting at the mother.” In the same context, later in paragraph 74, she finds that “he has abused the court process by using it as a vehicle to make the mother feel insecure and vulnerable.” Thirdly, she finds that there was “absolutely no merit” in the case brought by the father. So despite noting, as she does, that he has limited means, lives in rented accommodation, and is in receipt of statutory benefits, and it may be that the order for costs could never be enforced, she nevertheless goes on to make the order that is now the subject of this appeal. Although the judge does not refer to the case-law that I have just made reference to, my reading of her judgment is that it sits plainly within the jurisdiction that Hale LJ described, and which has been endorsed by courts subsequently. This was a finding by the judge that the father had acted unreasonably both in starting the proceedings, but more importantly, in the way he had conducted himself throughout the proceedings. It therefore is plain to me that she, as a matter of law, was justified in considering an order for costs, and I can see no error in her exercise of discretion in deciding to deploy that jurisdiction and make an order in this case.

The issue on which the father appealed was fundamentally the principle of making a costs order against a party with no ability to pay. Of course, the conclusions that the Judge made at paragraph 74 were that the costs were to be the subject of detailed assessment, and that the issue of enforcement of any costs order was an entirely separate matter to the principle of a costs order being made. (The fact that the costs order was made did not mean that the Legal Aid Agency would be trying to get the father to make payments out of his benefits, and a consideration of his means would be done at any later stage where the LAA did wish to enforce the order)

The Court of Appeal entirely agreed with the judicial approach

17. Against that background, despite hearing what the father says about the particular incidents, in my view the father cannot succeed in his appeal on the first limb, which is that the judge should not have made an order for costs against him in any event. The second limb in the appeal is that the judge failed to take account of his means and failed to take account of the level of costs that he would be expected to pay. He says, and I readily again accept what he says, that no costs schedule was produced by the lawyers acting for the mother for him to see what it was that he was being asked to pay and for the judge to see what it was he was being asked to pay. He is right to raise that matter with us. He also points out the burden that this costs order would have upon him were it ever to be enforced against him. Given his current means, it would be devastating for him, and he says that he could never get his life back on track if he had to face a bill of this sort. He says that would not only have an impact on him but also, either indirectly or directly, adversely affect his ability to support the children and in other ways that relate to the children’s welfare.

18. Insofar as the absence of a costs schedule is concerned, the judge provided for that circumstance, because her order is plain that there has to be “a detailed assessment of her costs” before the costs order becomes a reality. It therefore is the case that there has to be a process of what in the old days would be called “taxation” of the mother’s costs, adjudicated upon it if necessary, to decide what the reasonable level of costs should be. So the only question is whether we should in some way accept the steer given by Thorpe LJ in granting permission to appeal in requiring the judge’s order to include some phrase such as “not to be enforced without leave”. I am not attracted by that course. The detailed assessment provisions will protect the father from facing a bill which is unreasonable in terms of the elements of the costs schedule itself. The question of enforcement will be for any subsequent court to deal with, on the facts as they then are, as would be the case in any ordinary civil litigation. I therefore do not agree with the view that Thorpe LJ had apparently formed at the permission stage that the judge was in error in not putting in a phrase about enforcement.

19. For the reasons that I have therefore variously given, I consider that the father’s appeal should be dismissed.

So, be warned, egregiously bad litigation conduct which results in hearings and legal costs for the other side can still result in a costs order being made, even where the party is a ‘man of straw’ with no means. Having no means does not enable the party to engage in bad litigation conduct with impunity.

Whether the order will ever be enforced is another matter, but of course, if the father’s financial circumstances change so that he has means with which to pay the order (a job, an inheritance, a lottery win or such) the costs order could be legitimately enforced.

So whether you are in the process of advising a person who is carrying on this way that there are risks associated with it, or advising a person on the receiving end of it about the possibility of obtaining a costs order, the case is an important one to be aware of.

3 Comments

Posted in case law, contact, costs, private law and tagged costs, costs order can be made for bad conduct even where you have no money, costs orders, Court of Appeal, enforcement of costs order, making costs orders against person with no means, private law, Re G (Children) 2013. Bookmark the permalink.

J’accuse .. no, I don’t… wait, yes I do (oh no you don’t)

Posted on October 24, 2012 by suesspiciousminds

A discussion of Re W (Children) 2012 EWCA Civ 1307

http://www.familylawweek.co.uk/site.aspx?i=ed102911

This appeal centres on whether, having made allegations and then subsequently consented to an order saying that findings in relation to them would not be pursued, a party can then resile from that and seek to reopen the findings.

An interesting appeal, arising from private law proceedings. Within the course of the proceedings, a very detailed set of allegations was drawn up on behalf of the mother. These were very grave allegations indeed.

At a relatively early stage of the fact finding hearing, in August 2009, counsel for mother appears to have given the mother certain robust advice about the prospects of succeeding in proving such allegations.

Counsel for both parents asked to address the Judge in chambers, and taking appropriate precautions to ensure that both clients were aware and content with this and that the discussion was recorded, this took place.

5. Trying to summarise the discussion, it seems that mother’s counsel, acknowledging the standard of proof that was upon the mother and the allegations over many years on a monthly basis, said to the judge that it would be difficult to see how the court could make a positive finding or indeed a negative finding and the judge may therefore come to the conclusion she could not make a finding one way or the other. She posed the question one has to ask, namely where that would take the court in the terms of the proceedings then before the court, which seemed to be concentrating on the father’s contact. The judge acknowledged that, and there was therefore some discussion about the allegations set out in the Scott schedule.

6. Counsel for the mother then indicated to the judge that mother had expanded upon her complaints and was now also complaining about his behaviour to the children, though the only specific matter she could relay to the judge was an allegation that mother had seen father hitting the boy about the head. She explained that her instructing solicitor was making further inquiries and would detail those further allegations as soon as possible during the course of that day, because the judge made it perfectly plain that she would deal with any further allegations there and then without delaying the case any further.

7. So those further inquiries were made and they are now set out on a further schedule, which recites with regard to the children that the father would hit the boy about the head almost on a daily basis and call him stupid; that he would punish the boy; that he did not treat the children equally; and fourthly that the father would touch the daughter inappropriately, not in a father-daughter manner but more intimately than expected by a father. As I read the transcript, of the proceedings I am not sure that the judge was made aware of that fourth allegation.

8. The judge, that is to say HHJ Black — pragmatically and sensibly in my view — enquired what the true nature of the dispute was going to be. And if and insofar as it was a matter of contact, it was important, she considered, to understand the mother’s case. She said:

“Now if that was her case so she was saying ‘No contact ever because I emotionally will never be able to deal with this’ which I would have a great deal of sympathy with, I think probably all of us would have a great deal of sympathy with and be on her side. So this was a complete no contact case, I can understand that …

But I cannot understand…Even with the new allegations, what I will always want to know as a start point is…she is the mother of these children… If she is coming in to say, notwithstanding all of this, ‘This is what I think is the way safe contact for my children can continue’ short term, long term et cetera, et cetera, that is how I would be informed. And I would like you firstly to find out, whatever happens, there will be contact starting as soon as it can be sorted out. There is no reason why it shouldn’t be.”

9. So the judge was asking instructions to be taken about whether the mother was saying no contact at all or whether she was accepting that there should be contact, which would progress if it was shown to be successful and the case was therefore adjourned for mother to be advised.

10. Counsel then took instructions and returned to the judge and, in a long passage which I need not read in full, counsel for the mother made it plain as follows:

“My client’s position is this. That notwithstanding any of the allegations that she still generally believes are true that she would like the children to see their father in a controlled environment and if he is able to behave appropriately and have a father, child relationship with them she would wish contact to progress.”

And she then set out how that would happen. Counsel told the judge:

“She understands that that would mean drawing a line in the sand in respect of her allegations both the ones she has detailed in her statements to the court and those she has raised today in respect of dad’s conduct towards the children specifically.”

And I omit further words:

“She is very clear she wants the children to enjoy their relationship with their father.”

I omit more passages:

“Your Honour, as I say, my client does understand that this will be drawing a line under her allegations. She is not withdrawing them in the sense that she does not accept they are fabricated and if I could say that does not strike us as a situation where this woman genuinely believes what she is saying. Whether that is objectively how events have occurred is a different matter and I know that it is a point that troubles my learned friend.”

11. So, in the light of that discussion, the judge was being asked not to proceed with the hearing before her and left it to counsel to prepare a draft order, which had recitals giving full effect to the understanding they had reached.

There’s then what I consider to be a very neat bit of drafting, to dance on the head of a pin, and reflect that the allegations were not being pursued or relied upon in relation to the issues of contact and residence before the Court, but neither was there any acceptance on behalf of either party as to whether or not they were true.

“UPON HEARING COUNSEL for each of the parties.

AND UPON the Respondent Mother not seeking to pursue positive findings in respect of the allegations raised by her in the Scott Schedule and in the list here attached. It being noted by the court that the allegations made on the list were first made at Court today.

AND UPON the Respondent Mother understanding that notwithstanding that fact that she is not withdrawing her allegations, she will not be able to put forward specific allegations as reason(s) for a bar against contact or future progression of contact between the children and the Applicant Father or in relation to residence and the Mother understanding that matters will proceed on the basis that [I think it should be] no negative findings have been made against the Father.

AND UPON the Court recording that no findings of fact have been made against the Applicant Father and that the Applicant Father continues to deny all allegations made against him by the Respondent Mother.

AND UPON the Court recording that as no allegations have been proved against the Applicant Father, no professional assessment of him should be on the basis of the concerns against him by the Mother in the Scott Schedule and list attached herewith, and any assessment should proceed on the basis of events as described by the Mother as having not occurred.”

Sadly for counsel for the mother, she was no longer representing the mother by the time of a hearing on February 2012 (perhaps due to diary clash, perhaps – as can be seen by mother’s complaints, more a clash of personality than diary), and mother instructed her subsequent counsel to seek to revive the allegations. This is what she says in her witness statement for the February 2012 hearing.

12. I know it sounds dramatic but I would use the word tyrannical to describe [counsel’s] approach. I was very scared and I do not believe she gave me balanced advice.

13. [She] suggested that she should go and see what the judge had to say and I agreed. I recall she came back and indicated that the judge had said that she would have difficulty in making a positive or negative finding but that we could do things by way of recital. I think at that point that [she] was doing all that she could to dissuade me from testifying and although she did not say it I was left in no doubt she thought I was wasting the court’s time. I felt bullied and I had lost all confidence.”

17. It may be that that allegation should be contrasted with how she had earlier approached the hearing before HHJ Black. In a witness statement of 22 December 2009, that is to say some four months after the hearing before HHJ Black, she said only this:

“I am aware I am no longer allowed to bring these matters into the Children Proceedings, but can confirm I am still on the waiting list to see a counsellor from the Portsmouth Rape Crisis Team but I will not let the past, in respect of myself, have any weight to my views and the children’s views of contact with their father.”

In the same witness statement she dealt with the harm that the children could suffer and she said:

“I am aware this cannot be brought up again in these proceedings.”

18. There are certainly no mention of bullying or of her not fully understanding the nature of the compromise there had been effected. She put in her own witness statement in January 2012 when she was without legal advice and there she said:

“When the fact-finding hearing came up I had an alternative barrister, who advised me that the hearing would not achieve anything, as the Judge viewed the evidence and had said that even with testimony from all the parties involved, she would find it very difficult to make a decision either way. It was not made clear to me at the time that the fact finding hearing it was necessary for the facts of the case to go on record, whichever way the Judge ruled. I felt, and still feel that some elements are central to the case, and [father’s] ability to parent (such as the fact that he abused me and raped me throughout our marriage, and that I was in fact under the age of consent when he first attacked me)”

Again, there is not a complaint of being put under pressure by counsel through bullying nor of a failure fully to understand the compromise she had reached.

The Judge on 12^th February refused to reopen the allegations and to undo the order made, and this is the order that was appealed.

Counsel for mother in the appeal put her case skilfully (and as the Court of Appeal describe, valiantly) on the basis that the allegations are so serious that they cannot sensibly be ignored and a determination of them central to the issues in the case.

The Court of Appeal declined to overturn the case management decision of 12^th February 2012, saying that it was not only not plainly wrong but that was plainly right.

24. I, of course, entirely agree that it is in the interests of justice and in the interests of the children that the truth be known where the truth can be established, but in all of these cases the court is required by Section 1 of the Act to have regard, among other matters, to delay which is inimical to the well-being of the children. In this case there is nearly three years of delay or two-and-a-half years of delay and, as HHJ Marston rightly observed, matters had moved on considerably since that hearing. Matters had moved on because mother had suffered a further breakdown in her mental health. She was unable to care for the children. They were placed with father. They were subject to supervision by the social services department, who were well aware of the fact that these allegations had never been tried out one way or the other, but being alive to that fact nonetheless came to the very firm conclusion, as I have recited from the report of the social worker, that the best interests of the children lay with their remaining with their father.

25. The appeal has to be, in my judgment, an appeal against, in effect, a case management decision by HHJ Marston as to whether or not this matter should be re-opened. It may be a matter of debate as to whether the more appropriate course would have been to have appealed. This is not a case where the court is being asked to consider fresh evidence or different evidence from that which had been presented to the court which had undertaken the exercise. Here, in effect, the gist of the application is to set aside HHJ Black’s order and to have a rehearing. That, one may think, was better a matter for appeal rather than to go back to the same or a different county court judge, but I need not express a concluded view on technical issues of that sort.

26. Treating this as an exercise of discretion, Ms Earley attacks it as being plainly wrong. In my judgment it was plainly right. The judge was fully entitled to look at delay, to look at the way of the mother’s allegations of bullying had gradually grown as the case progressed, and to have regard to the fact that the mother was perfectly happy to leave these children in the father’s care unsupervised and unsupported for weekends and over holiday periods. She consented to all of those orders. She was aware of the effect of the compromise in August when she agreed those orders. She did not then complain. She complained only when the case had changed and she was now the one seeking residence from father, who had the backing of the social services in retaining the children in his care.

27. To re-open the matter would undoubtedly cause further delay; the effect on the boy who suffers sadly from a problem of his ill health would be severe; and the judge, taking all of those matters into account, was fully entitled to say that it was far too late to re-open matters. He was correct, moreover, to take the view that it would have been disproportionate, because one has to ask what prospect was there on the face of the papers before the court of mother succeeding in establishing the vague allegations she was relying on, allegations over many years with no corroboration apart from a broken tooth, which could have been explained as easily on the father’s account as on her account. There was little medical evidence, it seems, to corroborate her account. She was on her own admission inconsistent in her explanations of misconduct, in her reports to the psychiatric team who were advising her. She was inconsistent about the events of March 2011 when she suffered an injury, as she at first put it, in the course of sexual activity, which was to say the least unusual.

28. Taking a view as to the prospects of her success, they could not be put as anything like reasonable. On the contrary, they appear, as the judge concluded, to be weak. What was the benefit to the children? In my judgment not a great deal. The allegations against the mother do not appear to have impacted upon his treatment of the children, who as I have repeatedly said are thriving in his care.

29. For all those reasons, I conclude the judge was right to draw the line where he did. I would therefore dismiss this appeal.

Much of this obviously turns on its facts – the huge passage of time between the allegations being ‘left on the file’ and the attempt to resurrect, the lack of credibility given later evidence filed that mother had been ‘bullied into this by counsel’ and the inconsistencies in mother’s allegations, but there are the wider points that it is legitimate for a Court to conclude a finding of fact hearing with an agreed order on the basis set out in August 2009, and that the parties need to be advised with care that reopening such findings laid to rest may be extraordinarily difficult if not impossible, and that they should be sure about that before consenting to such an order.

1 Comment

Posted in case law, fact finding, private law and tagged allegations, finding of fact, private law, reopening findings, scott schedule, withdrawing findings. Bookmark the permalink.

The importance of being formal

Posted on October 22, 2012 by suesspiciousminds

A discussion of the private law case of Re K (A child) 2012 EWCA Civ 1306.

The judgment of the Court of Appeal can be found here

http://www.familylawweek.co.uk/site.aspx?i=ed102441

Normally I start with – the facts of this case are quite straightforward, but in this one, they aren’t.

There are four children, A, S, G and B. The children were all the biological children of one woman, the mother. A and S were the children of the father. G and B were, the mother says, fathered by two different men who had raped her, years apart.

A, S, G and B all lived with the father, who although not being the biological parent of G and B was a father figure to them.

A younger child from another relationship, D, lived with the mother.

There were serious allegations that mother had emotionally mistreated the children, and the section 7 report was clearly in favour of the children residing with the father, and indeed had gone further in saying that if there was a shift in residence, the Local Authority would commence care proceedings to protect the children from the risk they considered mother to pose.

The appeal arose as a result of a review hearing in residence and contact dispute. At the review hearing, set up by a previous directions hearing ordering the author of the section 7 report to attend and be cross-examined, the positions of the parties were this :-

Mother invited the Court to appoint a Guardian and a child psychologist, so that the issues in relation to the children’s wishes and feelings could be explored.

Father invited the Court to make final Residence Orders and conclude the case.

An odd feature of this appeal was that the tape machine had not been working, and thus neither the judgment, nor the hearing itself had been recorded. Therefore, any criticisms I make of those representing mother are with the caveat that the matters which seem to be omissions might well have been dealt with and just not recorded. And they arise from the criticisms made by the Court of Appeal.

The Judge dismissed the applications for a Guardian or a child psychologist to be appointed, made Residence Orders and made an order for contact which was “as directed by the Local Authority”, making it plain that the orders were not “set in stone” and that mother could bring a fresh application if things were not working.

The mother appealed on these grounds :-

That the decision to refuse a child psychologist or a Guardian was plainly wrong.
That the Judge had effectively abdicated decision-making about frequency and duration of contact to the Local Authority
That he had made a final order at a review hearing and had not heard evidence from either parent (although he had heard evidence from the social worker)
That the allegations made against mother, and the cross-allegations of domestic violence were not determined at a finding of fact hearing.

The Court of Appeal rejected the mother’s arguments about instruction of a Guardian or child psychologist, considering the judge’s reasoning on this to be solid and it being a valid case management decision.

The lead judgment was delivered by Lady Justice Black.

35. I can deal robustly and swiftly with the question of the appointment of a guardian and/or a psychologist. I am not persuaded by the mother’s arguments in this respect. The judge had the benefit of input from the local authority, who had been very much involved in the case over a period of time. They were not abandoning the case but were intending to continue their attempts to persuade G to see his mother and would continue to enable B to do so. It was certainly open to the judge to take the view that it was difficult to see what more another expert could offer and that this was not the moment to take the course of involving another person in the children’s lives. Furthermore, appointing a guardian or instructing a psychologist would inevitably take time and he was entitled to put into the balance in this respect that the children needed to be settled and to return to normality. Protracted court proceedings would not help with that.

The Court of Appeal also considered the Judge’s position on contact to be acceptable.

36. I am not persuaded by the mother’s argument that the judge abdicated responsibility for solving the contact issue either. He determined that contact should be taking place and he made the decision to continue to entrust the furtherance of it to social services because he thought that G would come round. He made clear that this was not a final decision and that the mother could bring the matter back to court if it did not progress. Keeping the proceedings open for a further year and expressly providing for liberty to apply, which was not necessary in law and must therefore have been included as a deliberate message that the decision was not as the judge said “set in stone”, underlined this. The judge was entitled to take the view that this was the course that was in G’s best interests for the moment.

But it was the summary disposal of the case that concerned them.

The Court of Appeal note that from the notes of the hearing that they had been supplied with, those representing the mother had focussed on their application for adjournment and had not addressed the Court specifically on the mother giving evidence, or the need for a finding of fact hearing, or the reasons not to make final orders in accordance with father’s case.

[As indicated earlier, it may be that all of those things were done, but it was not recorded on the notes of hearing that the Court of Appeal were supplied with. I don’t want to cast aspersions on those representing mother, as that would be unfair given that I wasn’t there, and haven’t seen a full transcript]

40. I can well understand how it was that the judge took the approach that he did, that is not hearing from the parents. He was anxious, rightly, that the proceedings should not be drawn out any longer, and no doubt he was influenced by the weight of the evidence in support of the factual case put forward by the father and supported by the local authority’s investigations, and also by the practical difficulties in the way of the mother’s application for residence. Time had run out for the hearing, almost certainly because of the pressure of work in the court and it was already late in the day, and perhaps most importantly the judge was not asked by counsel for the mother to hear evidence from her or to permit cross-examination of the father. Counsel for the mother seems to have been taken by surprise by the judge’s final determination of matters. He was, as I have said, concentrating on persuading the judge that the matter should be adjourned for the intervention of a guardian or a psychological report and he did not expect that the judge would not only dismiss that application but also proceed to make final orders.

41. There are certain situations in which it is correct for a court to deal with applications summarily or on very limited evidence, but if that is to occur it is normally necessary for there to be some argument as to whether that is an appropriate course and a determination by the judge that it is for reasons which he articulates.

42. In this case the course that was taken does not seem to have been the subject of such a process. I am driven to the view, in all the circumstances, that the procedure adopted by the judge was rather too pragmatic and resulted in a hearing that was not entirely fair to the mother.

So the Appeal was allowed. Between the initial decision and the appeal hearing, there were some extraordinary developments. That is a massive understatement.

43. A few days ago the father’s solicitors wrote to the mother’s solicitors saying that contact with B, the only child who had been seeing the mother without problems, was going to be suspended. This was said to be because of a series of incidents which had given rise to concern about B’s safety and the father’s. They included the following. A man who called himself Stuart had turned up at B’s school claiming to be B’s father. A man who gave a different name had turned up at the contact centre wanting to join in contact with B. A third incident involved a man trying to snatch B from the father on a tube station platform.

44. The mother’s solicitors replied to the father’s solicitors saying that in mid-July, when at Homebase, the mother had recognised the man who raped her and had approached him and told him that B had been born as a result of the rape. The man (Stuart), had subsequently attended at B’s school and at the contact centre. Stuart told the mother that the father was behind the rape, having instructed Stuart to beat the mother up and rape her, and said that if he did not do so he would be paid a visit in relation to money that he owed the father for drugs and could not afford to pay.

45. Both parties concede that, in the light of this new and presently untested material and the suspension of contact with B, the case will have to return to the county court judge in any event now and that findings will have to be made about factual allegations

Now that will be an interesting finding of fact hearing. Given that as we know, the Court findings are binary (a thing either is proved to have happened, or it is proved to have not happened; there is no ‘not proven’ or ‘not sure’) either the father recruited and paid a man to rape the mother, or the mother has made the most scandalous and false allegations about the father. Either eventuality has huge implications for the children and their relationship with both parents. It is hard to see how they could go on to have a meaningful and full relationship with both parents after the determination of which of these two possibilities is true.

It is worth noting that the two other Appeal Court judges, whilst granting the appeal, expressed quite a bit of sympathy with the trial judge, and the Court as a whole communicated the need for all court hearings to be properly set up with clear and recorded ambit for the hearing , and for the formalities to be observed.

50. I would just add one short postscript. Family practitioners and judges have become adept at dealing with situations that are continually developing, which are not straightforward, and which require speedy decisions for which there is often insufficient court time. Conscious that children await their decisions they respond valiantly by getting on with the job without insisting on too many formalities. However, it is important that everyone understands the issues that are to be determined at each hearing and addresses the form that the hearing will take, ensuring that the process is robust enough, not too robust. The mother in this case had not filed a formal application for residence and contact and it would have assisted in an understanding of the matters that had to be determined had she done so. Indeed, it may be helpful generally if rather greater attention is paid to the formalities in family proceedings.

51. Secondly, a word about review hearings. Hearings at which there is to be a “review” of a case are not at all uncommon, but they do carry a risk that there is a misunderstanding as to what will be addressed by the court. It is important that in advance of such a hearing, there is as much clarity as possible about its form and ambit, the issues that will be addressed, whether evidence is contemplated and whether the orders that result will be case management orders or orders of substance and, if the latter, whether interim or final

And

Lord Justice Aikens

53. I would just wish to add two comments, however. First, I can well understand why in the circumstances the judge took the robust and pragmatic course that he did. In particular I would note that the judge’s course should be seen against the fact that the mother, represented by counsel, did not apply for the mother to be heard or for the father to be cross-examined; she did not submit that there should be an interim residence order and did not seek an adjournment.

54. My second comment is this. I entirely agree with what my Lady has said about the need for requisite formalities in family cases. If those formalities had been observed in this case, it is possible, to put it no higher, that the current position could have been avoided

I think it would be unlikely that someone appealing in the future on the grounds that a Judge had not heard from their client would be likely to succeed if they hadn’t made representations before the Court that their client should give evidence, for example.

No matter how confident one might be that your application for an adjournment will be granted, it is absolutely necessary to make sure that you deal with the counter applications that are being made, to ensure that the Court know that you resist those and the reasons why. Likewise, if a finding of fact hearing is sought, a schedule of allegations ought to be drawn up and lodged and a formal request made for such a determination.

The comments about review hearings are, I think, very sensible. The term is so widely drawn that it covers everything from a quick look to see that everything is on track, to interlocutory arguments about experts and evidence, to “well, it might be possible to conclude the case” and it is better to record clearly on the face of the order what the issues to be reviewed are, and what is envisaged might be achieved at such a hearing.

Comments Off on The importance of being formal

Posted in experts, fact finding, private law and tagged fact-finding, private law, review hearing, schedule of allegations, summary disposal. Bookmark the permalink.

suesspiciousminds

Tag Archives: private law

“The father is to have no contact while the investigation is ongoing”

Back off War child. Seriously

Bugs, bunny

Private law, infinite appeals and IT naughtiness

Care proceedings by the back door

Children giving evidence

After ten years of war, peace breaks out

“Man of Straw and costs”

J’accuse .. no, I don’t… wait, yes I do (oh no you don’t)

The importance of being formal

Follow Blog via Email

Nonsense, family law, sarcasm. Not always in equal proportions

Recent Posts

Follow me on Twitter

Archives

Top Posts & Pages

Categories

Blogroll