Category Archives: case law

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

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

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

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

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

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

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

FINDINGS IN RELATION TO THE PARENTS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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