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Care proceedings by the back door

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.

 

 

Children giving evidence

 

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.

After ten years of war, peace breaks out

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

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

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

This opening is worth reading, for a start

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

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

Why did the problems arise?

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

 

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

 

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

 

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

 

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

 

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

 

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

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

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

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

 

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

 

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

 

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

 

“Man of Straw and costs”

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.

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

 

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 12th 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 12th 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.

 

 

The importance of being formal

 

 

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 :-

 

 

  1. That the decision to refuse a child psychologist or a Guardian was plainly wrong.
  2. That the Judge had effectively abdicated decision-making about frequency and duration of contact to the Local Authority
  3. 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)
  4. 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.

Last night a Re J saved my life… (I am so, so sorry)

 I could not resist, once it came into my mind. And those of you with a classical education are muttering, that the shabby pun doesn’t even work if you pronounce it “Ray J”  – so a double apologies to the Brothers of Boris.  

 

A discussion of the decision of the Court of Appeal in Re J (A child) 2012, and where the bright line falls in a Judge allowing a case to be put and curtailing cross-examination that they aren’t finding helpful.

 

The case can be found here:- http://www.bailii.org/ew/cases/EWCA/Civ/2012/1231.html

It is, sadly, once again, one of those private law cases that have gone on for nine years, without very much being resolved in any of that time.

 

I was counting the number of different judges that had dealt with interlocutory hearings, and reached ten.

It is little wonder, with such lack of judicial continuity, that the scale of the litigation and the need to grip it and reach a proper final conclusion wriggles away.

 

The point of appeal is interesting – the father’s case was in effect, that as we so often see, the pace of movement and progress on contact is dictated by the mother, who makes a series of objections that are never resolved in litigation but the case inches forward, bit by bit, always at the pace the mother is able to get away with. [I am not saying that this happens in all cases, or even a lot of cases, but I am certainly familiar with it happening in some. To avoid sexism, it is the person who has day to day care who tends to take this approach, I don’t think it is gender specific per se]

On cross-examining the mother about her various shifts in position and historical objections to contact – with a view to establishing that her current position was unreasonable, the father’s counsel was stopped by the Judge.

 

25. Realistically, if I may say so, Ms Thain did not press the first of the father’s two complaints on this part of his appeal. The key point, which she understandably put at the forefront of her submissions, was that the Recorder wrongly limited the ambit of the factual investigation upon which, as she would have it, Ms Holmes properly wished to embark in her cross-examination of the mother.

26. The matter arose in this way. In her application filed in October 2011 the mother, as we have seen, was opposed to anything other than supervised contact. By the time of the hearing in March 2011 the mother was expressing herself as being “happy” with unsupervised contact: this was the word she used (Transcript p 46) in answer to questions from the Recorder. Indeed, it seemed from her answers to the Recorder (see Transcript p 51) that she had no objection in principle to overnight contact. When Ms Holmes tried to put this change in her stance to the mother (Transcript p 61) she was stopped by the Recorder (Transcript p 62): “Do not answer this question … I say do not answer it because I do not see where it is going.”

When Ms Holmes tried to explain, the Recorder broke in: “do you really want the witness to rake over all her earlier concerns and worries?”

27. Ms Holmes persisted: “Your Honour the problem is … that repeatedly what the mother does is she makes allegations that stops contact, she then comes to court and makes … concessions in court that lead to a small step forward. The point I’m making is … that if we are going to have a stable regime of contact… that is going to last I think we need to get to the bottom of what the problems are because otherwise the worry the father has is we go away from here, two months down the line all the same allegations, and we come back to court again and we’re back to where we were, square one.”

The Recorder responded: “Well I think you will find that the court, at least this court, will want to move forward rather than to linger … I have to approach the case as it is today, the witness has said, and I am sure your client would want to move forward from where it is today rather than, as it were, have a kneejerk reaction … to kick it back to the order of District Judge Chandler in 2008.”

Ms Holmes then made a very pertinent point (Transcript p 63): “But Your Honour the reality is … that what she is proposing is that she dictates the way in which it moves forward. That she is saying it should move forward in this particular way only … when we have never actually established why the previous arrangements were wrong.”

She added: “But we’re now in a situation where the mother is determining that there should be a vast reduction from that level of contact. I’m trying to get to the bottom of why she feels that that is necessary.”

The Recorder then made his position very clear (Transcript p 62): “Well let me reassure you, you are not going to gain any mileage from this line of cross-examination and I am interested in looking forward and with that in mind do you have any further questions?”

28. Ms Holmes soldiered on for a while. As the short adjournment approached the Recorder said this (Transcript p 68): “I am going to curtail your cross-examination unless you want to investigate what would be more acceptable to [mother] otherwise we shall move straight to your client.”

Ms Holmes made clear (Transcript p 69) that: “if I am not able to explore [the allegations being made by the mother] then it does hamper my ability to be able to put my client’s case.” The Recorder was unmoved: “Well that may be but it seems to me we are where we are”.

29. In his judgment the Recorder acknowledged (Transcript para [3]) that he had not permitted cross-examination, as he put it, “going back into the mists of time”. He explained why: “it seemed to me … and it still seems to me, that the proper starting point for the hearing today is today.”

30. The point made by Ms Holmes in her skeleton argument and elaborated by Ms Thain in her oral submissions is simple and compelling. The Recorder concentrated on how things might move forward without questioning, or allowing counsel to question, how or why the current state of affairs had come about and whether the mother’s reasons for unilaterally varying the previous court order were justified. This, it is said, was particularly alarming given what Dr Little and Ms Coatalen had said in their earlier reports – material suggesting that there could be a pattern to the mother’s behaviour requiring investigation of the kind the Recorder refused to permit. In short, it is said, by restricting cross-examination of the mother the Recorder ensured that it would be impossible for him to carry out the task required of him and denied the father a fair hearing.

If I may say, I  very much like the cut of Ms Holmes’ jib here.

The Court of Appeal, unsurprisingly, took a dim view of the Judge’s view that the past was of no interest to him in making decisions about the future.

31. In my judgment the father’s appeal must be allowed on this ground alone.

32. The point is really quite short and simple. Of course the Recorder was right in saying that one had to look to the future: after all, his task was to determine J’s future living arrangements. And of course, in one sense, the Recorder was right to look at how matters stood on the day of the hearing: after all, things were as they were. But his error – and in my judgment he here fell into plain and obvious error – was in rejecting Ms Holmes’ entirely justified desire to explore the crucial question of why it was that things were as they were at the date of the hearing. The investigation – the cross-examination – that Ms Holmes wished to undertake was not something she wished to pursue Micawber-like in the speculative hope, absent any reason to believe so, that something might turn up. On the contrary, and as she explained to the Recorder, there were at least two things she wished to explore, and which in my judgment cried out for investigation: first, why the mother’s attitude had changed between October 2011 and March 2012; second, and even more important, why the arrangements agreed in January 2008 had not worked out and why the mother believed they needed to be changed.

 

33. The Recorder may have been right in doubting the utility of an investigation “back into the mists of time”, but this was not what Ms Holmes was suggesting and it was no answer to the need for a more focused investigation of the kind she wanted to undertake. As my analysis of the litigation shows, there was a very clear point in the past which was the obvious initial starting point for such an investigation: the order made by District Judge Chandler on 7 January 2008. Two things about that order are striking: first, it was made against the background of the concerning matters identified and considered by Dr Little and Ms Coatalen, and taking into account Ms Coatalen’s recommendations; second, it was an order made by consent and moreover, as the order itself makes clear, on an occasion when the mother was represented by counsel. Now of course in a case such as this a consent order does not have the same status as a consent order made in ordinary civil proceedings, but it was nevertheless entirely understandable that Ms Holmes should wish to probe with the mother why she no longer saw the order she had agreed to as being appropriate. Moreover, given what Dr Little and Ms Coatalen had said, Ms Holmes had every justification for wishing to explore whether the explanation for the mother’s change of view since January 2008 lay in those matters which had caused Dr Little and Ms Coatalen concern rather than in the explanations now being offered by the mother.

34. Whether it would have been appropriate for Ms Holmes to seek to push the investigation farther back into the past – even assuming she would have wanted to – was, I should add, not a matter calling for a ruling at the outset. It was a matter to be considered, if the need arose, in the light of how the preceding cross-examination had gone.

35. Of course, and even in a family case, a judge should stop irrelevant or time-wasting cross-examination. But a judge should always bear in mind that, however carefully he has read the papers beforehand, counsel is likely to have a better grasp of the inner forensic realities of the case. And a judge does well to think twice if, as here, his intervention is met by counsel standing her ground and carefully explaining why she wishes to cross-examine in a particular way, especially if, as here, counsel’s reasons have obviously been carefully considered and are not just ‘off-the-cuff’. Ms Holmes is to be congratulated for doing her duty, politely but firmly standing her ground and telling the Recorder plainly that his ruling was preventing her putting her client’s case. It is a pity that the Recorder did not, even at that point, see any reason to change his mind.

36. In my judgment, the effect of this was indeed, as submitted to us, to disable the Recorder from carrying out the task required of him and to deny the father a fair hearing. But I go further. To deny the father a fair hearing and a proper opportunity to put his case was also, of course, to deny J a fair hearing. And for the reasons given by McFarlane LJ it may also have meant that the mother’s case was not properly considered.

37. There is no way in which we can remedy things except by allowing the appeal and directing a re-trial at which those matters which the Recorder refused to consider can be properly investigated. In the circumstances the re-trial must be in front of a different judge.

 

The telling point here is that father’s counsel was able to set out the purpose of her cross-examination and that it had a relevant and pertinent aim and intention, and was not just a string of questions in the hope that something good might come out of it. Judges wishing to curtail cross-examination will need, as a result, to hear what underpins the questions; and counsel faced with potentially irascible tribunals will need to have at their fingertips an explanation of the strategic thrust of the topic and why it goes to the live issues in the case. [If they are not able to produce an answer to that readily, they perhaps shouldn’t be embarking on that line of questioning…]

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