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Category Archives: private law

Back off War child. Seriously

Yet another alleged radicalisation case, this time private law.

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

 

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

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

 

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

 

Brrr.

 

In the criminal trial, father denied everything

 

 

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

 

 

The radicalisation evidence begins here

 

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

 

 

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

 

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

 

 

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

 

 

 

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

 

 

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

 

The Judge made some powerful findings of fact

 

Findings of Fact

 

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

 

 

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

 

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

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

 

 

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

 

 

 

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

 

 

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

 

 

 

 

 

 

 

Child questioned on FORTY FOUR occasions about alleged abuse by father

Such abuse turning out to have never happened and having been fabricated by the mother.

 

This is an extraordinary case heard by MacDonald J

AS v TH (False Allegations of Abuse) [2016] EWHC 532 (Fam) (11 March 2016)    

http://www.bailii.org/ew/cases/EWHC/Fam/2016/532.html

It was a private law case, though one threaded through by involvement with social workers, police officers and therapists.  It began when the mother of two children N and S, left TH (the father of S) and moved from Scotland to England.

She then made a series of allegations of abuse by TH, both against her and against the children.

To turn to the paragraph that gave this post its headline

 

78. Namely, that between 11 August 2014 and 29 July 2015, and when account is taken of the intervention by CAMHS that I will detail later in this judgment, the children were questioned with respect to, or seen as a consequence of the allegations made in this case, often in the presence of each other and their mother, by no less than nineteen professionals on no less than twenty occasions for S and no less than forty-four occasions for N. Five different police officers were involved with interviewing the boys.

 

The Judge notes at the end of the judgment, the comments of the Guardian.

235. The Children’s Guardian attended each day of this fact finding hearing. Having listened to the evidence in this case the Children’s Guardian told the court that she considered this case to be “quite extraordinary“. Surveying the conduct of professionals in this case she concluded that “it is as if a sort of hysteria took over and prevented people from asking certain questions“. I cannot help but agree.

 

To be honest, the case is peppered with judicial despair/horror about what had happened, and I could pluck critical paragraphs from almost anywhere.

But the opening gives you a flavour of where things are going:-

 

  1. This is very troubling case. In Re E (A Minor)(Child Abuse: Evidence) [1991] 1 FLR 420 at 447H Scott- Baker J observed:
      1. “It is disappointing that, despite the passage of time since the Cleveland report, several witnesses had either not read the report at all or, if they had, they ignored its conclusions in many respects. Permeating the whole case is the underlying theme of ‘the child must be believed’. Of course what any child says must be listened to and taken seriously, but the professionals must be very careful not to prejudge the issue”.
  2. Seventeen years later Holman J felt compelled to make similar observations in the case of Leeds City Council v YX & ZX (Assessment of Sexual Abuse) [2008] 2 FLR 869 at [143] as follows:
      1. “I wish only to stress…the very great importance of including in any assessment every aspect of a case. Very important indeed is the account of the child, considered, of course, in an age appropriate way. An express denial is no less an account than is a positive account of abuse. It is also, in my opinion, very important to take fully into account the account and demeanour of the parents, and an assessment of the family circumstances and general quality of the parenting…Even 20 years after the Cleveland Inquiry, I wonder whether its lessons have fully been learned.”
  3. Eight years after the decision in Leeds City Council v YX & ZX and nearly 30 years after the Cleveland Inquiry I have found myself during the course of this hearing asking myself the self-same question as that posed by Holman J.

 

 

And the closing

 

  1. 230. I am satisfied that that N and S have been the subject of emotional abuse by their mother by reason of her conduct towards them as set out above. I am satisfied that as a result of the conduct of the mother detailed in this judgment both children have suffered significant emotional harm.
  2. As I stated at the outset of this judgment, this is a very concerning case. In August 2014 the mother manufactured alarm using a falsified version of past events in an attempt to avoid returning the children to Scotland. Using a combination of emotional pressure, inappropriate exposure to adult discussions and, on occasion, coaching, the mother proceeded to recruit the children to her cause. With the aid of repeated and persistent poor practice by a range of professionals the mother further succeeded in enclosing the narrative she had created within a hermetically sealed bubble, thereby succeeding in preventing professionals carrying out the checks that would have revealed that the allegations that were being made first by the mother, and then by the children required, at the very least, a critical and questioning appraisal. Indeed, by reason of their almost entirely unquestioning approach towards the mother, a number of professionals simply acquiesced to their confinement in that bubble. Had professionals adhered to well established guidance and procedure they would have discovered that the allegations lacked credibility.
  3. It is important to recognise that the professional failures I have set out have had consequences. By reason of the failure of the relevant agencies to follow the clear and well established guidance and procedure the children were not only left in a situation where a parent was permitted to persist in conduct that was harmful to their emotional welfare but, by their omissions, those agencies actively contributed to that harm.
  4. Child abuse, including child sexual abuse, exists as a terrible reality in society. Professionals charged with safeguarding the welfare of children must be constantly vigilant. As Ms Lot rightly pointed out to me, professionals are trained to adopt an approach by which they recognise that such abuse can happen anywhere. However, in circumstances where false allegations of abuse are also a reality in society, it is essential that this professional vigilance is allied firmly to the rigorous application of practice and procedure designed to ensure the proper investigation of allegations of abuse if injustices are to be avoided.
  5. Within this context, this case suggests that it is once again necessary to re-iterate the importance of the principles set out at Paragraphs 22 to 52 above. When investigating allegations of child abuse, including allegations of child sexual abuse, it is imperative that all professionals involved adhere to the law and guidance set out in those paragraphs so as to ensure the rigorous and fair investigation of allegations that is the foundation of ensuring the children concerned are safeguarded.
    In terms of detail, the Judge described one of the ABE interviews. Apologies that some of the questions are graphic, but I’m afraid that’s the nature of the allegations. Bear in mind that the ABE guidance is really clear and strong about the need for the account to emerge from the child and the need to avoid leading questions.
      1. 188….DC Hackworthy’s had concluded that S was not suitable for interview. S’s interview on 5 March 2015 took place in the context of him having little notice that it was going to take place, having been removed early from school for the interview, not having eaten and being given snacks prior to the interview, which he consumed during the interview. It is clear from watching the interview that this creates a distraction for S. The items he was given to snack on during the interview were given to him by his mother immediately before the interview commenced and were considered by S to be treats. As with N, at the outset of S’s interview at the outset of the interview DC Glendenning told S that “If you say something really, really interesting she is going to write it down“. DC Glendenning thus, once again, created a cue for S whereby he would know what the “interesting” answers were by watching the officer’s pen.
      2. During the course of his interview S stated that his father had hit him on the arm and had choked him. He said this happened when the mother went to “Nanny S’s” with N but his father said he could not go. S also alleged that his father gave him wine (a new allegation). Later S also alleged that TH punched him in the neck (also a new allegation). Thereafter S repeatedly made clear to DC Glendenning that that is the sum of what had happened he has nothing more to say. From watching the interview it is clear that S is very firm in this regard. Notwithstanding this, DC Glendenning continued to push S to reveal further matters. At this point the interview departed even further from the precepts of the guidance.
      3. After S has stated eight times that nothing else happened DC Glendenning embarked on the following exchange with S:
          1. Q: Right, what about when you are alone with your dad?

A: When I’m alone with my dad he’s been a, he’s been nice but when Grandma was, is here, he’s been nice when, when she isn’t here, she’ he hasn’t been nice.

Q: OK, has your dad ever done anything dirty to you? Dirty, that you didn’t like:

A: Mmm, nothing else.

Q: Nothing else, erm, also its very important today that we find out everything, erm and also we’ve been speaking to your brother and he said some things that your dad did that wasn’t very nice to him, and that were dirty. Had your brother told you about these?

A: No.

Q: As he ever told you anything that your dad did to him?

A: Mmm mmmm, hasn’t seen and I’ve forgot…nothing.

Q: Nothing, are you sure there’s nothing else that’s worrying ye and?

A: There’s nothing else.

Q: Nothing?

A: Mmmmm.

      1. Prior to this point S has not used the word “dirty” at any stage. In seeking to explain why she had introduced this DC Glendenning said in evidence that it was because it was “difficult to get him to open up” and she was trying to put “it” in S’s terms of something possibly sexual. DC Glendenning appeared initially to be unaware of the forensic difficulties created by the interviewer introducing the concept of “dirty” events in the context of S being alone with TH before S had raised the issue in any way. However, ultimately DC Glendenning accepted in cross examination it was wrong to introduce the word. DC Glendenning accepted that S may well have perceived this as her wanting him to say that his father had done something dirty to him.
      2. Notwithstanding that S had again made clear in response to the foregoing questions that nothing else had happened, DC Glendenning still persisted. She next informed S that she was aware that S had said things to Ms Khanom. DC Glendenning conceded in cross examination that she had no note of what it was that S was said to have said to Ms Khanom and, as set out above, that Ms Khanom had no clear recollection. Within this context the following exchange took place:
          1. Q: Can you remember what you told her?

A: I told her the same as I just told you.

Q: Nothing else?

A: I told her a little bit of it but not that much.

Q: I think she says you like to say it in its parts and its part 1 and part 2 when your talking about things.

A: Mmmm.

Q: And that you said that part 1 was dirty, can you, it’s really, really important if you could tell me what part 1 is today and then you don’t need to tell me again, can you tell me what part 1 is? What your dad did?

A: Mmmm, really don’t want to tell that bit.

Q: It’s just.

A: I really I really don’t like telling that bit.

Q: I know you really don’t like telling it but see, N’s been very very brave today and he’s told us part 1 and part 2, what happened to him. And obviously, we want to make sure that your safe and that you’re here safe with your mum so we need to know what [TH] did, so that we can make sure that your nice and safe and make sure if he’s a bad person that nothing else will happen to anybody else, do you understand that? And I know it’s, it’s scary telling strangers about things that happened but it’s very very important that we know, so that we can do the right thing and we can make sure that the bad man is dealt with, do you understand that? And Mihema (sic) told me that you told her, so just, if you just told me just that once, then I can sort, I can make it all sorted.

A: Well mummy told the nurse but I don’t want told her, the nurse parts1.

Q: I know.

A: Mum told that the bad, bad dirty man done it to me.

Q: I know, but it’s good that your mum told us, but we really need you to tell us, so that.

A: Mmmm

Q: So that we know exactly what happened, you only need to tell it once because that’s why the cameras are here cause one you tell it that’s it. And then you can go back and nobody will be annoying you again. Understand it is very very important. Could you just tell me it really, really quickly?

A: Mmm, Mmm, I couldn’t say it that quickly.

Q: Can’t say it that quickly, how about then, we go back, was it, was it in your dad’s house? In the flat?

That pain in your forehead is because you just banged your head on your desk or keyboard, or any solid object close at hand at how terribly leading that interview is. Oh. My. God.

    1. It is difficult to know where to start with respect to summarising what is wrong with the approach by DC Glendenning set out above. Indeed, the passage largely speaks for itself as an example of extremely poor interviewing practice. DC Glendenning’s questions start from the premise that something “dirty” has happened to S, that TH is the perpetrator (pre-cast by the questioning into the role of the “bad person” and the “bad man”), place emotional pressure on S by telling him that N and his mother are “brave” and “good” for telling what happened and that a statement by him is needed to keep others safe and make promises to S that are unjustified (i.e. if he tells it once he will not have to tell it again). In addition, certain of DC Glendenning’s questions were misleading in other respects. In particular, N had not in his interview made his allegations in terms of “part 1” and “part 2”. Finally, it is clear that S has plainly overheard his mother making allegations to a “nurse” that “the bad, bad dirty man done it to me“.
    2. Within this context, DC Glendenning’s was forced to concede during cross examination that she had during this phase of the interview placed grave pressure on a five year old child to make an allegation against his father. DC Glendenning further conceded that following this passage of questioning that S may well have felt he had little choice but to give DC Glendenning what she wanted.

 

And yet, we’re STILL not done with how bad this ABE could get.

    1. Following the exchange set out above DC Glendenning then proceeded to question S in detail starting, as can be seen, from the premise that something has happened. S told DC Glendenning that what occurred had occurred in Scotland, that he was wearing the pirate costume that he was wearing in the interview (which seems unlikely) and that N was not present. S said that his father did “a naughty thing“. When asked what this was S again limited his allegation to “He. He choked me and he hit me and, and he punched me, and and he, he made me drink that wine“.
    2. DC Glendenning tried yet again. Finally, after telling DC Glendenning that he only wanted to talk to one person, after it was proposed that the other officer leaves the room, and after DC Glendenning said “And you can quickly tell me what happened and then that’s it, would that be OK” S stated that TH “asked me to put his willy in my bum“. S went on to state that “he, he only asked though” and “He didn’t try he just asked“. When DC Glendenning asked “did he ever try and put his willy in your bum” S was adamant that he had not.
    3. Still DC Glendenning refused to accept that as the final position and re-introduces Ms Khanom, asking (again without having access to any recording of what S actually said to Ms Khanom) “Right, erm, when you speaking to Mihema (sic) earlier on, she says that your told her that your dad [TH] put his willy in your bum“. DC Glendenning did not seek to explore with S different versions he had given to Dr Haji and Ms Ille. When, at the end of this exchange, DC Glendenning askes S “Have you ever touched his willy?” S replies “Mmmm of course not“. Later in the interview S states that TH “didn’t do anything to mum“.
    4. Following the interview of S DC Glendenning completed an additional comments form. On that form DC Glendenning recorded her impression of S during the interview as being one of child who “appeared nervous, frightened and confused over what was right or wrong“. Within this context, during cross examination regarding the interviews of S and N on 5 March 2015 DC Glendenning conceded that she was concerned during the interviews that both the children had been coached and that that concern never fully left her during the course of those interviews.

 

 

The social work interview with the children took place WHILST the mother was present and in front of EACH OTHER. I apologise if you now have another blinding pain in the head. Sorry.  Pause for a moment, and pop a pillow in front of you. You will still feel the head-desk urge, but you will now have a softer landing.

 

On 8 December 2014 both children were seen by a social worker from Westminster, a Ms Ille. The records demonstrate that the children were repeatedly questioned by the social worker together and in the presence of the mother and in a highly leading manner that paid no heed at all to proper practice.

 

Once again, I am entirely unclear why Ms Ille, a qualified social worker, saw fit to question the children in company of each other and in front of their mother and to allow the mother to participate in that questioning and to reveal her worries and concerns in the presence of the children. Efforts to secure the attendance of Ms Ille for cross examination proved unsuccessful.

 

Have you got that pillow or soft object handy? If not, get it now. Because we’re going back to a bit about the ABE interview that I didn’t dare tell you before.  DEPLOY your pillow now.  Actually, get a second pillow. Use that too. You are seriously not going to believe this.

 

  1. Further, DC Glendenning stated that she realised straight away that N had notes with him. She further stated that she was concerned that it was possible someone had helped him write those notes. In evidence the mother claimed that N compiled these the night before the interview by himself upstairs. She denied that she talked to him about what he should say in the interview. DC Glendenning was clear in her view that the mother had seen the notes prior to the interview and said as much. DC Glendenning was also certain that the mother had known N was writing the notes and had read the notes prior to the start of the interview. DC Glendenning said she was concerned that N had been prepared for the interview.
  2. Notwithstanding her concerns that N had been prepared for the interview, DC Glendenning proceeded to interview N with his notes available to him. DC Glendenning justified this course of action by reason of N being “desperate” to have access to the notes. N’s desperation to have the notes is clear from the DVD of the interview which I have seen. In particular, it is significant that when it became apparent to N that his notes may be removed, N became flustered and gave a confused answer which indicated that his recollection was not firm.

 

You say notes, I say script, let’s call the whole thing off. Yes, let’s…..

 

There’s another social work investigation, but the social worker doesn’t speak to anyone other than mum and the children, having been told by mum that it is too dangerous for the family for anyone who knows dad to be approached. The social worker had to accept that she had approached the case as though all of the allegations were true, and commended mum for taking protective action when closing the case.

 

  1. I have made reference above to the social worker, Ms Salamant. The refuge made a referral to Hackney Children’s Services on 8 September 2014. Hackney commenced a s 47 investigation on 9 September 2015, which assessment was concluded on 23 October 2014. Ms Salamant was the allocated social worker. There were patent deficiencies in her assessment.
  2. The assessment was completed solely based on information from the mother or information for which the mother was the only source and, latterly, on information gleaned from the children at a series of meetings and, in respect of N, an ABE interview. During her evidence Ms Salamant conceded that, in complete disregard of the principles of good practice that I have set out above, she at no point contacted either father of the children or any member of the children’s extended maternal or paternal families and at no point contacted the children’s previous schools or the health services previously engaged with the children. Ms Salamant further conceded that she did not speak to the mother’s new partner, ER, nor sought to carry out police checks with respect to him (notwithstanding that the refuge expressed concern regarding this relationship).[2] Indeed, until told in the witness box Ms Salamant did not know his address or that he too had children.
  3. Ms Salamant’s omissions were grounded in an apparent unquestioning acceptance of the mother’s claim that it was too dangerous to contact the fathers, the maternal and paternal extended families, the children’s former schools and doctors or the local authorities from whose area they had moved for fear that TH would locate the family. Ms Salamant accepted without question the allegations made by the mother that that TH and BC had “colluded” to find the mother’s address in England, that TH was linked to drug dealers, that “someone” may be sent to England to find the family, that TH was seeking to kidnap the children and that her own mother might accept money from TH to disclose the family’s whereabouts. Ms Salamant made no efforts to investigate whether these matters that the mother claimed prevented a full assessment were, in fact, credible. As I have already set out above, each of the assertions by the mother were, it transpires, entirely un-evidenced and, I am satisfied, untrue.
  4. Finally, and as a consequence perhaps of her one dimensional assessment, it was plain to me having heard her in the witness box that Ms Salamant had proceeded at all times on the basis that the allegations made by the mother and the children regarding domestic and sexual abuse were, without question, true. At no point did Ms Salamant interrogate this assumption.
  5. In light of the findings I set out in the Schedule at the conclusion of this judgment, it is sobering to note that when she closed the case on 23 October 2014 Ms Salamant stated that the mother:
      1. “…has taken all the necessary steps to ensure that N and S are safe from harm and has demonstrated a capacity to reflect on her experiences and provide the children with a sense of stability and safety during this uncertain time.”

On behalf of the mother, Ms Krish concedes, very properly, that Ms Salamant’s assessment, when viewed, as it must be, through the prism of the guidance set out in the Cleveland Report and Working Together to Safeguard Children 2015, was fundamentally flawed and lacked even the basic information upon which to base judgments regarding the welfare of the children or the credibility of their and their mother’s allegations.

 

There was a pre ABE meeting in October 2014, and unfortunately, the recollections of the social worker and police officer as to what happened at that meeting do not only fail to match but they are diametrically opposed.

 

  1. As a result of the mother’s report of what N and S had said on 11 September 2014 the children were seen at the refuge by two Police Officers, DC Card and DC Bishop, and Ms Salamant. The account of DC Bishop and that of Ms Salamant as to what N said on this occasion are diametrically opposed. Neither DC Bishop nor Ms Salamant took contemporaneous, or near contemporaneous notes of their conversation with the children. S refused to speak despite encouragement from his mother in the presence of the two Police Officers and Ms Salamant.
  2. Ms Salamant stated in evidence that upon arrival there was a brief discussion between the adults present in the presence of the children. Ms Salamant stated that this was a “general conversation” at which it was explained to the children that police officers present to ensure they were safe and well. Ms Salamant could not however recall the full conversation. DC Bishop said the mother was with the children for the whole of the introductory conversation during which DC Bishop was talking to the children. In contrast to Ms Salamant, DC Bishop estimated that that conversation lasted 15 to 20 minutes. No record of that conversation was made.
  3. With respect to the allegations said to have been made by N, Ms Salamant could not recall what N had actually said nor the context in which he said it. After returning to the office and nearly three hours after the meeting had begun Ms Salamant made an entry in her records, namely that (a) TH had played with S’s privates, (b) TH tried to drown me and gave me “Chinese” burns and (c) he witnessed TH hit his mother. Ms Salamant also recorded that “N made a disclosure stating that [the mother] is isolated and is not in touch with friend and family“. She conceded that N would not have used the form of language in the record she completed and accepted that her recording was wholly inadequate. She further recalled that the mother had made the same allegations as those she ascribed to N and appeared, ultimately, to be uncertain as to whether that which is recorded in her record came from N or from the mother.
  4. Within this context DC Bishop, having also participated in the conversation with N, recorded in her pocket book only that N “stated that his brother’s dad had hurt him when he dropped food on the floor.DC Bishop readily conceded that her notes were very poor. DC Bishop was however very clear in her oral evidence that N made only one allegation. DC Bishop said that she did not hear N say anything about the matters recorded by Ms Salamant in the social work records. In my assessment, DC Bishop was a more reliable historian that Ms Salamant

 

 

Interview by GP

 

(vii) Appointment with Dr Haji on 8 October 2014

  1. On 8 October 2014 N and S were taken to see Dr Haji, a general practitioner. It would appear that at the outset of the appointment the mother gave Dr Haji an account of the family’s background and of the allegations of sexual abuse in the presence of both N and S. The social work entry records that, in front of S, Dr Haji asked N to describe what he had seen TH doing to S and that (in another slightly different account) N is recorded stated that TH “touched S down below and entered him.”
  2. Dr Haji records that S was “unfortunately present” when N pointed to his penis and said he tried to put this into S’s back passage. Within this context, the social work record of this appointment states that at this point, and several times thereafter, S interjected forcefully and said “that’s a lie, that didn’t happen“. Dr Haji’s note records that S shouted that “this had not happened“. Within this context Dr Haji is recorded as having contacted children’s services to express his initial concern that S (given the context I suspect the recording is mistaken and Dr Haji in fact said N) may have been asked to disclose the sexual assault allegation.
  3. I am entirely unclear why Dr Haji saw fit to take a history from the mother of the family’s issues in front of the children. Notwithstanding that it produced several forceful, and forensically significant, denials from S, I am equally unclear why Dr Haji considered it to be proper to permit N recite his allegation concerning the sexual abuse of S in S’s presence

 

 

There were allegations at school, and the procedures there too were not followed

 

  1. The most recent safeguarding training at the school, a copy of which I have also seen, makes clear under that the ‘Cause for Concern Form’ must include exact information, the name of the child and the date. The training makes clear that the teacher receiving the allegation must not ask questions and should not tell carers of concerns unless part of an agreed strategy.
  2. Both Ms Lot and Ms Duggan appear to have failed comprehensively to follow their own school’s safeguarding guidance and training and the accepted good practice with regard to the recording of allegations made by children. In the case of Ms Lot, in addition to not making any written record, she proceeded to question N and informed the mother (apparently in N’s presence) of what he had said. These are in my judgment serious omissions on the part of a teacher fulfilling a child protection role. As a result, the court is left with no accurate record of what N said and no clear idea of when he said it.

 

 

The Judge was satisfied that the father had not abused the children and that the mother had fabricated the allegations. There’s a lot of detail in the judgment about this, if you are sceptical, I’d point you towards reading that. (Being fair, just because the investigative process was flawed does not mean that the allegations were untrue, so you would need to read those passages to be sure).

 

  1. Standing back to survey the broad canvas of the evidence, I am satisfied for the reasons I have given that not only were the allegations made by the mother and the children false, but further that the allegations made by the children were generated by the mother placing unwarranted emotional pressure on the children by herself making false allegations regarding TH and making them known to the children, by inappropriately involving the children in adult discussions and by, on occasion, actively coaching the children to make allegations against TH.
  2. In the case of Re W (A Child) [2014] EWCA Civ 772 Ryder LJ (as he then was) observed as follows with respect to the significance of parents who make or cause to be made false allegations of physical and sexual abuse:
      1. “Given the prevalence of false allegations made by parents against each other in private law proceedings, conduct at this level by a parent should be understood to be serious child abuse that will usually necessitate intervention by a court.”
  3. Within this context, and having regard to the extensive matters set out above, I am satisfied that that N and S have been the subject of emotional abuse by their mother by reason of her conduct towards them as set out above. I am satisfied that as a result of the conduct of the mother detailed in this judgment both children have suffered significant emotional harm.

 

The Judge also outlined that the failure of all of the professionals to follow proper procedures had harmed the children and compounded the emotional harm that the mother was causing them.

 

  1. I am further satisfied on the evidence that the actions of certain professionals in this case breached well-established principles of good practice, actively contributed to the difficulties that I have set out above and materially prejudiced the welfare of both children:
    1. i) Almost all the professionals and agencies involved with the children proceeded on the unquestioning basis that the mother was telling the truth and failed to interrogate that assumption by carrying out basic enquiries. The most acute example of this was the assessment of Ms Salamant. Ms Krish properly concedes that the social worker never really challenged the mother’s account and that the most basic independent professional enquiries were not undertaken. Ms Salamant’s failure to challenge the mother’s account and accept it at face value meant that she permitted the mother to dictate completely the frame of reference for the actions of the local authority and other agencies and meant that mother succeeded in portraying herself and the children as victims of serious physical and sexual abuse when in fact they were not. Ms Salamant’s failure to make enquiries of the fathers, the children’s extended families, the children’s schools, doctors and previous local authorities was particularly egregious in circumstances where such enquiries would have revealed a fundamentally different picture to that being painted by the mother.

ii) A number of professionals failed in their duty to keep accurate records of what the mother and the children were saying. This failure was particularly acute (a) on 12 September 2014 where neither DC Bishop nor Ms Salamant kept accurate records of their meeting with the family, resulting in accounts of what the children said that were diametrically opposed, (b) at N’s school in September and October 2014 where Ms Duggan and Ms Lot failed to make any record at all of the allegations made by N in breach of the schools own safeguarding policy, Ms Lot attempting to pass this failure off as a feature of the case being open to social services and (c) on 29 October 2014 when DS Hackworthy took no notes at all of his pre-ABE interview with N and S. Outside the interviews of the children, not one professional recorded a contemporaneous or near contemporaneous account of what the children said to them.

iii) A number of professionals took it upon themselves to question the children with respect to the allegations outside the regulated confines of an ABE interview. There was a particular failure to follow the guidelines by (a) Dr Haji on 8 October 2014 who proceeded to elicit an account from N in front of S, (b) Ms Lot at N’s school between September and October 2015, who took it upon herself to ask multiple questions of N, (b) Ms Ille on 8 December 2014 who repeatedly questioned both children in a highly leading manner (having never met the children) and (d) Ms Khanom who likewise proceeded to question the children in a leading manner.

iv) There was an apparent failure of agencies to co-ordinate their interventions in respect of the children. The most extreme symptom of this was the number of professionals the children were spoken to by in respect of the allegations. As set out above, between 11 August 2014 and 29 July 2015, and when account is taken of the intervention by CAMHS, the children were questioned with respect to, or seen as a consequence of the allegations made in this case, often in the presence of each other, by no less than nineteen professionals on no less than twenty occasions for S and no less than forty-four occasions for N with five different police officers were involved with interviewing the boys.

v) For the reasons I have set out above both DC Bishop and DC Glendenning failed to apply, in the case of DC Bishop, Achieving Best Evidence, and in the case of DC Glendenning, the Guidance on the Joint Investigative Interviewing of Child Witnesses in Scotland. The results of this failure are plain from the passages of the interviews set out above. DC Glendenning conceded that the sole purpose of the interviews on 5 March 2014 was “to get evidence of sexual abuse“. DC Glendenning’s conduct of the interviews on 5 March 2014 with N and S represent in my judgment particularly serious examples of poor interviewing practice.

vi) Finally, ahead of any findings of fact being made or criminal conviction in respect of the allegations, CAMHS intervention in this case extended to therapeutic intervention for N by three psychiatric and psychological specialists in addition to group therapy over 29 sessions and for S over six Play Therapy sessions on the basis that both children had been abused in the manner alleged by the mother.

 

 

 

Bugs, bunny

M v F (Covert Recording of children) 2016

 

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

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

 

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

 

Let us have a look at the recording that was done

 

 

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

 

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

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

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

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

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

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

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

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

(7) At least four devices were used

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

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

(10) The bugs were bought by the partner

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

36 Domestic purposes.

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

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

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

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

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

 

 

Moving on, were the recordings useful to the Court?

 

 

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

 

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

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

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

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

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

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

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

 

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

 

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

The Judge made some general observations about clandestine recording

 

 

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

 

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

 

 

 

 

Suspended sentence for woman who saw her son “too often”

 

I read this story on ITV news way back in December 2015, and it took 20 seconds of googling to suggest that there might be more to it than the headline suggested.

http://www.itv.com/news/2015-12-15/suspended-sentence-for-woman-who-saw-her-son-too-often/

 

Because the woman in question had a previous history in the family Courts, that history being that she turned up with a report from a psychologist that she had in fact forged, by writing it herself and the named psychologist knew nothing about it. And that she went to prison for perverting the course of justice. That’s pretty unusual, even in the circles of contentious private law proceedings.

 

This matter has a very long and very sad history with continual court proceedings stretching over almost the entirety of X’s life. The mother was made the subject of a previous s.91(14) order at the conclusion of proceedings before Mrs. Justice Macur, as she then was. After that order had been made, the mother sought permission from Mrs. Justice Macur to make an application in respect of X. In support of that application, she filed what purported to be a report from a psychologist. When it was checked, it was discovered that that document was a forgery and the psychologist named denied any knowledge of ever writing any such report. Criminal proceedings were instituted against the mother for perverting the course of justice, during the course of which she was convicted and sentenced to a term of imprisonment of nine months. That was in or about October 2012. The mother was still serving that sentence when the matter came before me in May 2013.

 

That of course doesn’t mean that she wasn’t the victim of injustice THIS time around, but it does mean that you might be somewhat cautious about taking her word for it.

Anyway, the committal judgment is now finally up.

Y v Najmudin 2015

 

http://www.bailii.org/ew/cases/EWHC/Fam/2015/3924.html

 

The contact order provided for supervised contact, seven times a year.

Having heard evidence over a number of days both from the parties, from the children’s guardian and expert evidence, I concluded that it was in the welfare best interests of X that his contact with his mother was very restricted, that it should take place, as I have set out, seven times per year in a contact centre, and it had to be professionally supervised. That was because I was satisfied that the mother had lied to me throughout the course of the hearing in 2013 and that she had and would, if permitted to have unsupervised contact, cause emotional and psychological damage to her son.  

 

The mother breached that order by making her own arrangements to see her son, clandestinely and without the knowledge of the father. She was not taking up her sessions at the contact centre, because she was making her own arrangements.

Evidence

  1. The mother in her evidence asserts matters have changed. X is more mature and he is older and he is old enough to make decisions for himself. That may be the case, but the fact that this mother chose to tell this child about this hearing and talked in detail about the evidence, in my judgment amply demonstrates that the circumstances that I found in my judgment in 2013 have changed not one jot.
  2. She may no doubt love her son, but it appears, in my judgment, that she remains incapable of assessing and putting his welfare best interest first. In addition, she did not at any time, despite regular email communication with the father, either (a) tell him that she was meeting X; or (b) ask his permission to see X. At no time, the mother concedes, did the father in fact agree to change the contact arrangements as set out in the order of 3 May. In her evidence, the mother tells me that she could not remember the terms of the order made in May 2013; that she did not know that by seeing X as she did in the street that she was acting in breach of my order. I, without any hesitation, entirely reject that account from the mother. I am satisfied so that I am sure that she knew full well what I had ordered and what were the restrictions on her contact, but she has chosen, in my judgment, deliberately once more to flout the court’s order and to ignore it.
  3. She takes the view that X is old enough to make his decisions and if he asks to see her, then whatever there may be in a court order is completely irrelevant. Well, she is wrong. She, by taking the actions that she has, has put X in an immensely difficult position. The father tells me, and I accept that X has said to him that he loves his mother and he would like to see his mother, but he would like to see her in the supervised contact centre. The mother tells me that when she sees X he is pleased to see her. I have no doubt being a loving child that he would do that. But the father tells me that by the time he gets home, it is plain that X feels uncomfortable, worried and concerned about these chance meetings, knowing that they are not taking place as the court has ordered; knowing that they have not taken place as he would wish. The mother, in my judgment, has put X in an extremely difficult position. She has quite deliberately chosen not to tell Mr. Y about these meetings, nor to seek his permission. All of those facts demonstrate to me that the mother knew precisely what it was that she could and could not do by the court order, but she chose to breach it.
  4. Furthermore, I am reinforced in coming to that view in terms of the adverse effect on X because I accept the evidence from Mr. Y that X has taken now to taking different routes home from school in order that he may try and avoid seeing his mother in those haphazard meetings in public. I accept that evidence. I am also concerned to hear it because it demonstrates very eloquently the conflict that this young man feels about the circumstances that his mother has caused him to be in.
  5. On the totality of all the evidence that I have heard, I am satisfied so that I am sure that the mother has breached the order of 3 May 2013 and, in particular, para.6, on each of the occasions set out in the schedule of findings sought by Mr. Y. In respect of those matters, where the mother was either not sure whether she had seen X on a particular date, or said that it was in fact her partner, Mr. Z, for example, who went to the father’s home on Wednesday, 15 April, I unhesitatingly reject those explanations and I find as a fact that the mother has met with X as set out in that schedule.
  6. Accordingly, I am entirely satisfied that the mother is in breach of that order and she is in contempt of court and she now falls to be punished for that contempt. I will consider what punishment I should impose at 2 o’clock after I have heard anything Dr. Najmudin may want to say in mitigation of her breaches of the order as I have found.

 

Bit of a c( ) ck up on the old anger management front

 

This case, decided by Ms Justice Russell, involved a 15 year old, an 11 year old and a 4 year old, all who had become involved in a private law contact dispute between their parents.

FY v MY 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/16.html

 

Readers may recall that Reggie Perrin had a brother-in-law, called Jimmy.  Like all characters in Reggie Perrin, Jimmy had a catch-phrase and his was “There’s been a bit of a c( ) ck-up on the old catering front”  – meaning that he needed to borrow a bit of money from Reggie to tide him over.   [I’ve written the letter “o” here as brackets, to stop it being devoured by over-eager spam filters]

 

Jimmy also had plans to build his own (fairly) secret army, which was to be opposed to just about everything, including long haired weirdos, short haired weirdos, keg bitter, namby pamby probation officers and glue sniffers – I think Jimmy might do rather well in modern politics, as it goes. I think he might acquire a significant number of followers.

 

 

"Do you think so? I thought recruitment might be difficult"

“Do you think so? I thought recruitment might be difficult”

In this case, here are the reasons that the father might have needed anger management

 

  1. On the 1st February 2014 K and M went to spend time with their father at 11 am; L followed later at noon having completed his homework. At 9:30 that night L arrived at home saying that their father had hit K so L had run away. MY tried to call K’s phone, FY’s apartment and FY’s mobile phone and when the phone was answered she could hear K who was very distressed and crying. When K got home at about 10:15 pm he was clearly very distressed.
  2. The boys told their mother that FY had taken them to a restaurant and had made reference to a solicitor’s letter; a comment or response of L’s angered their father and L tried to explain to FY that he was not taking sides, at which point FY started to swear at them and call them abusive names. When K responded FY kicked at him under the table as a result of which K sustained abrasions and marks to his legs (which were seen the next day by his doctor and the court has seen the doctor’s report). They told their mother that their father kicked at L and punched his side. They left the restaurant and both boys sat in the back of the car as K did not want to sit in the front with his father. When K tried to phone his mother and his father saw this he told K not to call and tell her what had happened, but K continued to try to make the call. FY then attempted to take the phone away from his son whilst driving the car, by reaching around the car seats grabbing at K. L tried to intervene and became caught up in the altercation and said that he had been hit on the side of his face near his eye twice, he thought by his father’s elbow. From the pictures taken after the event it is apparent that L’s face was bruised and swollen on one side (the court has seen the doctor’s report about the injuries sustained by L).
  3. When they arrived outside their father’s apartment building, as the boys later told their mother, the struggle between K and his father continued with FY pushing K into the building leaving K with red marks to his the left hand side of his face. About five minutes later at 9:35 pm L arrived at home in a distressed state. MY immediately tried to call K on his mobile and, as he did not reply, called the land line to FY’s apartment. She says that FY answered and she could hear her son crying and asked to speak to him but FY did not allow her to and put the phone down. About 50 minutes later FY returned K to his mother’s home. K was flushed and very upset, he and L sit close to their mother with their heads on her lap, crying. Both boys did not want to see or speak to their father. They were seen and checked over by their doctor on the 4th February, who provided their mother with a short report which sets out their injuries and confirms they are consistent with the assaults as reported. I have seen the documents and accompanying photographs.
  4. The day after, on 2nd February 2014, according to their mother, K and L refused to speak to or see their father. FY phoned and asked to speak to L who did not want to speak to him. At about mid-afternoon FY called again and asked to see M, and for L to go to see him as well. L told his mother that he was scared that if he did not go his father will be angry with him. FY then started to call MY’s mobile phone, the landline and the nanny, repeatedly, to demand that L and M came immediately. MY told him, on the nanny’s phone, that M was on his way but that L would not be coming as he did not want to go. FY was abusive to MY and continued to make repeated phone calls which caused distress to the boys, their mother and the nanny. FY left the country that day and did not return until the 20th March 2014. He chose not to attend court on the 13th March 2014; a hearing which was to listed to review the contact agreed in December 2013.
  5. The boys have continued to be affected by the events of the 1st February. K has spoken to the teachers at his school about what happened and, entirely appropriately the school was concerned about what he had said and the events have been noted on his school records. It is their mother’s recollection that FY did not contact the boys until about 15th February when L spoke to him briefly but K refused to speak to him. On 19th February FY’s sister contacted K to try get him to contact his father but K was clear in his response to his aunt that he would not do so.
  6. On the 23rd February there is an exchange of text messages between father and son; K said that he did not want speak to or see FY “I already know the whole truth because you are a liar and mama is not.” In his response FY, again, raised the court case and texted “Didn’t u want to live in dubai?” K responds, “I don’t want to live with you you said you will never hit me again and you did …I wanted to live in Dubai but not with you.” His father responded “I did not hit u. I love u very much and I miss you.” K texted “You kicked me which is even worse”. FY went on in his text to say that K had hit him and that he had forgiven K, to which K responded “After you kicked me, and pulled my hair and scratched my face.” FY again made reference to the court proceedings and says that he was “fighting for” K and K replies “I don’t care about you and I don’t forgive you for kicking me.” When his father responded by texting that he forgave K and changed the subject to football but K texted; “Well I don’t and because you haven’t even apologised to me.” FY texted “I am sorry baba. I love u” and K texted back; “Fine I will give you one more warning but please don’t kick me again.” FY then asked K to apologise and promise that he will never talk like that to his father again. He was insistent that K posted (on social media) “something nice about ur baba in ur status message” and despite K’s responding three times that he wanted to sleep FY kept texting him. It was well after 10 o’clock at night when all this took place.

 

It must therefore have been momentarily pleasing to the Judge to learn that father was engaging in anger-management work. Momentarily pleasing.

 

  1. On the 26th September 2014 FY applied for interim contact. The case was listed before me on the 3rd October 2014 and by that time the case came FY had undertaken an anger management course with a Dr A-M in Dubai. Doubts were raised about the efficacy of this course and it is a fact, as FY told me in his oral evidence, that Dr A-M is a friend of his of many years standing and that Dr A-M is now married to a member of FY’s family.
  2. I have not heard evidence during this hearing regarding the suitability or otherwise of the course that FY undertook but I question the wisdom of undertaking a course run by someone who a reasonable and independent observer would consider to be unlikely to be able to maintain the requisite objectivity to lead successfully. On the face of it a longstanding friendship would be more likely than not to compromise the ability of any professional to challenge the behaviour, mind-set and prejudices of the participant, and it must be the case that any anger management course must rigorously challenge aggressive behaviour and personal misconceptions of a participant in order to be effective.

 

I don’t think that Dr A-M was quite a brother in law to FY, but certainly related to him by marriage, which is what put Jimmy in my mind.   Well, that, and the fact that the father also brought sit-coms into the mix, by peculiarly comparing his son to Del-boy from Only fools and horses (?) (I know…)   Of course, whilst Del-Boy’s catch phrase was “this time next year, we’ll be millionaires”, it is suggested elsewhere in the judgment that this might be a step-down in fortunes for FY rather than a pipe-dream.

 

FY told AFC  [Anna Freud Centre – the experts instructed] that he wanted his children to be respectful towards him but that K had been brainwashed by his mother and Cafcass had added to it; he had not spoken to him for two weeks. He said that her family were using the children as hostages. He described L as like Del-Boy in Only Fools and Horses and said L “is a commercial guy you can bargain with him“. FY said he was angry with K that is why he did not call him – “culturally in this case he needs to apologiseI tell L if K wants to call me then he knows how to get hold of me…this conflict is a cultural conflict, they turn the British system against me – she is bringing them up to have disrespect for me.” When talking of the incidence of physical chastisement FY said “I regret nothing regarding the children – the only thing was I was an idiot to let her come back to London.” When asked if the anger management course had proved helpful he said that he had “never had an anger problem.” These comments of FY are illuminating and reveal the basis of his case, his approach to these proceedings and his attitude towards his ex-wife and children.

 

I suppose if you absolutely had to, on pain of death, describe one of your children as a character from Only Fools and Horses, that it would probably be better to go for the Del-Boy comparison than using Trigger, but that’s a small crumb of comfort.  In all other circumstances though, don’t compare your children to Only Fools and Horses characters.

 

After various attempts to get contact back up and running, the case came back to Court

 

  1. When the case came back to court there had been a breakdown in L’s relationship with his father. According to his mother’s written evidence (contained in her final statement dated 8th January 2016) FY had continued to contact the boys, particularly L outside of the times set down in the court order. He continued to make reference to, and discuss, these proceedings with the boys. He had also attempted (and sometimes succeeded) in engineering encounters with the boys, for example to contrive to see L pass by on the bus to or from school. In isolation this latter action on FY’s part would be innocuous but it was part of a pattern of behaviour designed to go behind court orders and to involve the children in flouting the orders of the court. FY had become angry with L when his son told him that he had to comply with the court timetable for telephone contact. In any event the order was a generous one for contact to take place every day.
  2. MY’ evidence was that it was sometime around the 16th of October 2015 that FY last spoke to L and told him to “listen…listen carefully”; and, whatever the content of the conversation his mother said both in her written and oral evidence that L ended up screaming at his father down the phone saying that his father was ruining his life. L had not spoken to his father since. Nor has his father spoken to him or even tried to; his father told me during the hearing in January 2016 that he was still waiting for an apology from L; he betrayed no sign of the hurt and confusion he must be causing his son and it was obvious that he not only considered himself to be in the right but that he also considered himself, a fully grown man, to be the wronged party at the hands of a distressed and unhappy young adolescent. From the evidence before me it was not possible to say exactly when this incident on the phone took place but it was certainly before the hearing on the 5th November 2015.

 

 

The father after the children met with Mr McGavin, the CAFCASS officer, tried to induce his son L to send him a text message that the father could produce in Court.  The Judge was singularly unimpressed.

 

  1. It was Mr McGavin’s evidence that the boys had a good relationship with him and could say what they wanted to him and I accept his evidence. He is a most experienced guardian and there is absolutely nothing in the way of evidence before me which could support FY’s case that Mr McGavin had told, or even suggested to, the boys what they might say about seeing their father. On the contrary he has assisted them to get their views across by encouraging them to tell him what they wanted the judge to know. The questions that he asked were open and when he told them of his recommendations there was never any suggestion that they were expected to go along with him. Both he and the Cafcass Legal lawyer were aware of the need for separate representation should it arise and had discussed it and kept it under review.
  2. After this interview K had spoken to FY who, again, had discussed the case and the contents of Mr McGavin’s report with him. FY told me he had sent K the Cafcass report. He was entirely unrepentant his discussions with K in his oral evidence, he accepted it was in breach of the court order and was clearly of the opinion that he had not only done the right thing but that in doing so he had undermined any case that K did, in fact want contact supervised. He encouraged and prevailed upon K to send an email to FY, so that he could produce it in court, it read, “Hi baba, I am writing to say that. Yes I want to see you and hang out with you like I used to, I want to travel to Jeddah, Dubai, Middle East. And I just want to travel anywhere in the world with you. I know you have anger issues. So I will try not to be rude to you so you don’t end up hitting us. Thank you”
  3. In my all my experience as both advocate and judge I find it hard to think of a more blatant example of attempted manipulation. The email, however, does not support FY’s case. The final two sentences are a reference to the previous physical abuse inflicted by FY on his son and to the unpredictability of FY’s temper, along with the fact that he places the responsibility for his abusive behaviour on the children, rather than with himself as their parent and the adult. It is a further example of FY’s controlling and manipulative behaviour. There can be little wonder that L used the word “manipulative” in his text to his father when he complained to him about his behaviour.
  4. Mr McGavin concluded in his final analysis and in his oral evidence that the end of the road had been reached. This was based on repeated attempts to re-establish contact each of which had failed because of FY’s lack of co-operation and engagement with the professionals involved. In the end he withdrew from the process altogether. Neither boy had said wanted to see their father in the present circumstances, but the guardian was sure that they would both want to see FY if they knew they would be physically safe and emotionally safe. Mr McGavin asked that in view of K’s special needs a ‘no contact’ order should be made until he was eighteen, although this would be unusual and exceptional. He felt that K had his own vulnerabilities and that he needed the reassurance of the court order both for his own sense of security and to enable him to stand up to his father until he reached his majority.

 

 

The Judge was invited by mother to make orders that father have no face to face contact with the children (there would be telephone contact and Skype contact). The Judge analysed the father’s case and presentation in this way:-

 

  1. FY’s written and oral evidence was characterised by his inability or unwillingness to begin to see, never mind accept, his own responsibility for the boys’ reactions or feelings about him and how his behaviour had affected them. As Mr Verdan QC, counsel for MY, said in his closing submissions there are many examples but that two of the most obvious and closest in time to the hearing are his refusal to ring L on his birthday and his determination not to ring him unless L rings first to apologise, and, FY’s discussion with K about the proceedings on the eve of the hearing. Not only did he discuss the case he sent K the guardian’s report in order to use it in an attempt to undermine the guardian’s recommendations by pressurising K into to sending him an email confirming “his wishes” as his father wanted them to be presented. It was more than apparent from FY’s oral evidence that he is unwilling or unable to understand any of his children’s emotional needs and does not accept that he has caused them distress, upset or harm, despite the evidence before the court of their obvious distress. His own ability to take umbrage at the behaviour of his young teenaged son when L became angry with his father for the pressure he was putting on him speaks volumes for FY’s need to put his own feelings and amour-propre before the needs of his child, therefore, to suggest that he can safely have contact with M alone is nothing more than a further manifestation of this wilful or inherent deficiency in his parenting.
  2. I accept the submission on behalf of MY that it is nonsensical for him to assert that ‘he had no bad feelings for MY’ and wanted to speak to her in a constructive way. His actions and word to the court, in correspondence and, most seriously, to their sons over the last two years is evidence which is in stark contrast to his assertions. It was apparent from his oral evidence that FY is little short of obsessed about the maternal grandfather’s alleged role in these proceedings. I have found before, and there is no evidence to change my findings, that MY is an independent, sophisticated and intelligent woman who was not in 2013, and is not now in 2016, being controlled by her father in respect of these proceeding or, indeed, any other aspect of her life.
  3. In his oral evidence FY obfuscated, avoided answering questions and dissembled; at times he displayed an almost complete inability directly to answer a question put to him and would use the witness box to air his own feelings of hurt, despair and, at times, apparent bewilderment. Mr Hames’ submission that FY’s answers were a catalogue of grievances against the mother, her father, the professionals and even the children (as when he blamed L for not apologising to him) has some force. He claimed that he hadn’t seen or read critical documents or failed to recall important details about events or conversations put to him. He had no explanation of why he used phrases such as “so ashamed to have sons like you” to L and it was extraordinary that he claimed never to have read the L’s essay (set out above) before giving evidence. Where his evidence conflicts with other witnesses I must and I do reject it.
  4. Both MY and FY are dual-nationals; well-educated and cosmopolitan members of wealthy families who live an international life-style and to suggest anything else is dissonant with their own oral evidence and is not congruent with the totality of the evidence before this court.

 

 

 

  1. It is my conclusion that it is both in the children’s best interests and proportionate for there to be an order for there to be no direct (face-face) contact between the children and their father. There have been repeated incidents of violence directed against the boys and the need for them to be physically safe is no small matter to be weighed in the balance. When he was no longer able to punish them physically FY’s response was to make L’s upset and distress when directed at his father was to make his life as miserable as he possibly could by withdrawing any semblance of support, understanding or affection. Having regard to this behaviour and because of his special needs, for K’s protection and his need for certainty, the no contact order for him is extended in the exceptional circumstances of this case to his 18th birthday. All three children need to be given an opportunity to develop emotionally free from manipulation by their father and free from the oppressive and damaging effects of a background of continued litigation and conflict.
  2. I have, quite deliberately, used parenthesis in the term “indirect” contact and as a matter of fact and logic, as Dr Asen would agree Face-Time or Skype is direct face to face contact and the same risks apply in respect of emotional harm with the corresponding need for supervision. With that in mind I will order that contact is limited to telephone contact as recommended by Dr Asen; one hour, 15 minutes for each boy and 15 minutes at the end. I will hear the parties about frequency.
  3. The children need time out, time to recover and to grow. The changes which the father needs to make before reintroduction of contact will take at least 12 months on the best prediction and while Dr Asen plainly considers that the father may not be capable of making the required changes it is to be hoped that he does.

High Court gets into the groove

 

They had style, they had grace

Lots of lawyers in this case

Setright, Verdan, Renton too

Adam Wolanski, we love you

Ladies with an attitude

Fellows that were in the mood

Don’t just stand there, let’s get to it

Write a skeleton, there’s nothing to it

Hague

 

 

The laboured opening may tell you that this piece is about the High Court case in Ciccone v Ritchie (No 2) 2016 involving the singer Madonna, and the film-maker Guy Ritchie, and their son.  [And no, it is not a request for a section 37 report arising from the Judge having had to view the film Castaway that they made together, though that did cause Significant Harm to anyone who saw it]

http://www.bailii.org/ew/cases/EWHC/Fam/2016/616.html

 

I’m going to start with how the Judge ended, because I think it is powerful and moving stuff, with much wider application than just these two celebrities.

  1. Finally, I would say this. For all the interesting legal argument and great learning that is apparent from the admirable skeleton arguments and submissions of leading and junior counsel, at the root of these proceedings (and, I venture to add, the proceedings in the United States) is a temporary breakdown in trust. For all the media coverage, comment and analysis, this is a case born out of circumstances that arise for countless separated parents the world over.
  2. The court should always be the option of very last resort when parents cannot agree matters in respect of their children. Whilst the law provides a mechanism for the resolution of disputes between parents in respect of their children it is but a blunt instrument when compared to the nuanced virtues of calm discussion and considered compromise between those involved, accepting that this latter path can be a hard one on which to embark, and to sustain, in the context of relationship breakdown. It is for this reason that during the course of the proceedings on each side of the Atlantic Judge Kaplan and myself have repeatedly urged the parties to adopt a consensual approach to resolving the matters of dispute between them for the benefit of Rocco.
  3. Within this context I renew, one final time, my plea for the parents to seek, and to find an amicable resolution to the dispute between them. Because agreement is not possible today does not mean that agreement will not be possible tomorrow. Most importantly, as I observed during the course of the hearing, summer does not last forever. The boy very quickly becomes the man. It would be a very great tragedy for Rocco if any more of the precious and fast receding days of his childhood were to be taken up by this dispute. Far better for each of his parents to spend that time enjoying, in turn, the company of the mature, articulate and reflective young man who is their son and who is a very great credit to them both.

 

In terms of points of law, there are some worthwhile passages about transparency – this Court case has attracted a lot of media attention in America, because there are ongoing proceedings in New York (where it seems the Press were allowed to come into the hearings, report what was said and even print a still photograph)  – should this judgment be published at all, should there be anonymisation – how exactly CAN you anonymise a case where there is already so much within the public domain, and where anyone with half a brain can identify who the parties are, even if you gave them just “M” and “F” initials?

I do like that the key American decision on transparency in these circumstances is actually called Anonymous v Anonymous

 

Publication of Judgment

  1. I set out the principles applicable when deciding whether or not to publish a judgment pursuant to the President’s Guidance in my judgment in H v A (No 2) [2015] EWHC 2630 (Fam) and I shall not repeat them in detail here. In summary:
  1. i) The public generally have a legitimate, indeed a compelling, interest in knowing how the family courts exercise their jurisdiction.

ii) Paragraph 19 of the Practice Guidance makes clear that in considering whether to publish a judgment the judge shall have regard to all the circumstances, the rights arising under any relevant provision of the European Convention on Human Rights, Art 8 (respect for private and family life) and Art 10 (freedom of expression), and the effect of publication upon any current or potential criminal proceedings.

iii) The exercise of discretion concerning the publication of the judgment will be a simple case management decision to be taken at the conclusion of the judgment and following a broad consideration of the applicable principles with basic reasons;

iv) When conducting a balancing exercise between Art 8 and Art 10, the court applies the four propositions identified by Lord Steyn in Re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593 at [17]. In applying what Lord Steyn described as the “ultimate balancing test” of proportionality it is important that the court consider carefully whether the order that is being sought is proportionate having regard to the end that the order seeks to achieve;

v) Within the balancing exercise, the child’s best interests are not paramount but rather are a primary consideration. Those best interests must accordingly be considered first, although they can be outweighed by the cumulative effect of other considerations;

vi) In undertaking the requisite balancing exercises, the impact of publication on the children must be weighed by the court. Whilst in many cases it will be demonstrated that publicity will have an adverse impact on the child, this will not be the position inevitably. In particular, in each case the impact on the child of publication must be assessed by reference to the evidence before the court rather than by reference to a presumption that publicity will be inevitably harmful to the child.

vii) When the court is considering whether to depart from the principle of open justice it will require clear and cogent evidence on which to base its decision. Some of the evidence on which the requisite balancing exercise is undertaken will necessarily involve a degree of speculation although there comes a point where evidence is not merely speculative but pure speculation.

  1. With respect to the latter point, and noting the difference in emphasis between the two jurisdictions, in reaching her decision that there were no compelling reasons to close the proceedings in New York Judge Kaplan cited the following passage from the decision of the Appellate Division of the Supreme Court of New York, First Department in Anonymous v Anonymous 158 A.D.2d 296 (1990) as follows:
    1. “The unsupported speculation by her counsel as to the deleterious effect the media coverage might have on the child is simply inadequate to overcome the strong presumption that court proceedings be open to the public.”

 

Publication of Judgments

  1. Balancing the competing Art 8 and Art 10 rights, I am satisfied that my judgment of 3 February 2016 following the hearing on 21 December 2015 and this judgment should be published. I am further satisfied that, in the exceptional circumstances of this case and subject to some limited redaction, the judgments should be published without anonymisation. The reporting restrictions in this case will continue to be governed by the order that I have already made and will apply to the reporting of my published judgments. My reasons for so deciding are as follows.
  2. The starting point in this case must be that it will simply not be possible for the court to produce an anonymised version of the judgments such as to eradicate the risk of jigsaw identification. Given the high level of publicity the world over in respect of this case, to produce a judgment that gives rise to no risk of jigsaw identification would result in a judgment that could not even indicate the dates on which the proceedings were heard. Within this context, and in the very particular circumstances of this case, I accept Mr. Wolanksi’s submission that in light of the level of information already in the public domain concerning this case, it is unrealistic to think that the judgments given by this court could be anonymised to the extent required to ensure the parties were not identified whilst at the same time remaining a means by which what the court has done in this case can be understood by the public at large.
  3. In these circumstances, I am satisfied that the choice for the court is to publish the judgments without anonymisation or not to publish them at all.

 

The key legal issue was whether a party who makes an application under the 1980 Hague Convention then needs leave of the Court to withdraw it.

The Court ruled that there does need to be an application to withdraw and for the Court to grant leave.

 

The Law

Permission to Withdraw

  1. FPR 2010 r 29.4 provides as follows in respect of permission to withdraw an application:
    1. 29.4 Withdrawal of applications in proceedings

(1)     This rule applies to applications in proceedings –

(a) under Part 7;

(b)     under Parts 10 to 14 or under any other Part where the application relates to the welfare or upbringing of a child or;

(c)  where either of the parties is a protected party.

(2) Where this rule applies, an application may only be withdrawn with the permission of the court.

(3) Subject to paragraph (4), a person seeking permission to withdraw an application must file a written request for permission setting out the reasons for the request.

(4) The request under paragraph (3) may be made orally to the court if the parties are present.

(5) A court officer will notify the other parties of a written request.

(6) The court may deal with a written request under paragraph (3) without a hearing if the other parties, and any other persons directed by the court, have had an opportunity to make written representations to the court about the request.

  1. The question to which this case gives rise is whether FPR 2010 r 29.4 applies to applications in proceedings under the 1980 Hague Convention and, if so, what the test is for giving permission to withdraw in such cases.
  2. As set out above, there is no authority precisely on this point. In respect of proceedings under the 1980 Convention some authorities appear to have proceeded on the basis that permission to withdraw is not required (see AA v TT (Recognition and Enforcement) [2015] 2 FLR 1) and some on the basis that it is required (see Re G (Abduction: Withdrawal of Proceedings, Acquiescence and Habitual Residence) [2008] 2 FLR 351 at [16] setting out the terms of an order made earlier in those proceedings and the recent decision of the President in Re D (Children)(Child Abduction Practice) [2016] EWHC 504 (Fam)). In none of those cases however, was the court requested to consider whether the permission of the court to withdraw was mandated by r 29.4 in this context.
  3. Anecdotally, my (admittedly limited) experience suggests that many practitioners do consider that the permission of the court is required to withdraw applications in proceedings under the 1980 Hague Convention and I have certainly endorsed a number of orders which provide for such permission in cases where an applicant has decided, for whatever reason, not to proceed.
  4. The remaining authorities on permission to withdraw concentrate exclusively on public law proceedings under Part IV of the Children Act 1989 (see Re N (Leave to Withdraw Proceedings) [2000] 1 FLR 134, WSCC v M, F, W, X, Y and Z [2011] 1 FLR 188 and Redbridge LBC v B and C and A (Through his Children’s Guardian) [2011] 2 FLR 117). These authorities make clear that in public law children proceedings, where the threshold is capable of being crossed the test for whether permission should be given for care proceedings to be withdrawn is the welfare of the child.
  5. However, care must be taken in relying on these authorities in the context of the question at issue before this court. First, those authorities were decided under the Family Proceedings Rules 1991 r 4.5 which, as detailed below, differs substantially from FPR 2010 r 29.4. Second, and importantly, the conclusions in those authorities that the question of whether care proceedings should be withdrawn is a question which concerns the welfare or upbringing of a child, and that the test for whether permission should be given is the welfare of the child, are grounded firmly in the fact that the upbringing of the child is the main question falling for determination in such proceedings (see London Borough of Southwark v B [1993] 2 FLR 559 at 572).
  6. It is important to note that the procedural requirement of permission for the withdrawal of proceedings is not limited to cases involving children, either in FPR 2010 r 29.4 or more widely. FPR 2010 r 29.4(1)(a) applies r 29.4 to applications in proceedings under Part 7 of the FPR 2010, namely applications in matrimonial and civil partnership proceedings, and is not qualified as only applying where the application concerns the welfare or upbringing of a child. Accordingly, pursuant to FPR 2010 r 29.4(1)(a) permission is required to withdraw an application for a marriage or civil partnership order governed by FPR 2010 Part 7 notwithstanding the proceedings do not concern the welfare or upbringing of a child. There are also other areas of law where permission is required to withdraw an application in proceedings. For example, under the Insolvency Act 1986 s 266(2) a bankruptcy petition may not be withdrawn without the leave of the court.
  7. Finally, and within this context, when considering both the scope of the application of FPR 2010 r 29.4 and the test for permission under it, it is very important to read FPR 2010 r 29.4 in its proper context. That context includes the fact that the FPR 2010 represents a new procedural code with “the overriding objective of enabling the court to deal with the case justly, having regard to any welfare issues involved” (FPR 2010 r 1.1). The court must give effect to the overriding objective when it exercises any power under the FPR 2010 (FPR 2010 r 1.2(a)) and has a duty to further the overriding objective by actively managing the case (FPR 2010 r 1.4(1)). Pursuant to FPR 2010 r 1.2(b) the court must also seek to give effect to the overriding objective when it interprets any rule.

 

  1. I have come to the conclusion that FPR 2010 r 29.4 does apply to applications in proceedings under the 1980 Hague Convention, governed as they are by FPR 2010 Part 12 Chapter 6 and that, accordingly, the permission of the court is required to withdraw such proceedings. My reasons for so deciding are as follows.
  2. In my judgment this is the plain meaning of FPR 29.4(1)(b). FPR 2010 r 29.4(1)(b) provides that r 29.4 applies to applications in proceedings “under Parts 10 to 14 or under any other Part where the application relates to the welfare or upbringing of a child“. I am satisfied that r 29.4(1)(b) is to be read disjunctively and that the words “where the application relates to the welfare or upbringing of a child” are intended to qualify only the words “any other Part” and not the words “under Parts 10 to 14“. I am reinforced in this view by the fact that Part 10 to Part 14 of the FPR 2010 deal with a wide range of applications that do not, or need not concern the welfare or upbringing of a child.
  3. Whilst it might be argued that the use of the phrase “any other” in r 29.4(1)(b) demonstrates that Parts 10 to 14 are included in r 29.4 only in so far as they apply to applications concerning the welfare or upbringing of children, if this had been the intention I am satisfied that those who drafted the rules would have said so expressly, rather than leaving it to be implied in circumstances where, as I have said, those Parts also deal with applications that need not, and often will not, concern the welfare and upbringing of children. Further, pursuant to FPR 2010 r 1.2(b) when interpreting r 29.4 I must seek to give effect to the overriding objective in FPR 2010 r 1.1. In my judgment reading r 29.4 in this context further militates against this latter interpretation.
  4. FPR 2010 r 29.4 represents a broadening of the type of applications in respect of which permission is required to withdraw when compared with the Family Proceedings Rules 1991. The previous rules, in the form of Part IV of the FPR 1991, made provision for permission to withdraw proceedings only in relation to proceedings under the Children Act 1989 (FPR 1991 r 4.5). For example, although FPR 1991 r 2.8 permitted the discontinuance of a petition for divorce, judicial separation or nullity before service of that petition, the rules made no provision for the proceedings to be withdrawn following service. By contrast, whilst pursuant to FPR 2010 r 7.9 an application for a matrimonial or civil partnership order may be withdrawn at any time before it has been served by giving notice to the court in writing (reflecting the provisions in FPR 1991 r 2.8), pursuant to FPR 2010 r 29.4(1)(a) following service the permission of the court is required before such an application can be withdrawn. Neither FPR 2010 r 29.4(1)(a) or FPR r 29.4(1)(b), which deals with applications in proceedings where either of the parties is a protected party, are not qualified as only applying where the application concerns the welfare or upbringing of a child.
  5. Within the foregoing context, in my judgment interpreting r 29.4 as including within its scope all of the applications governed by Part 10 to Part 14 of the FPR 2010, as opposed simply to those concerned with the welfare or upbringing of a child, is consistent with the overall aim of the FPR 2010 generally and in particular the aim of FPR 2010 Part 1, which requires the court to actively manage the case so as to further the overriding objective of dealing with it justly, having regard to any welfare issues involved.

 

The Judge recognised and acknowledged that where a party seeks permission to withdraw an application under the Hague Convention, it is next to impossible to conceive of a scenario where the Court would refuse and make them press on.

It would not serve the ends of justice to compel a party to pursue an application under the 1980 Hague Convention that they wish to bring to an end. Indeed, whilst not ruling out such a course of action entirely, it is very difficult indeed to think of a circumstance where the court would compel an applicant in proceedings under the 1980 Hague Convention to pursue an application they have indicated they wish to withdraw. Further, having regard to the overriding objective, there are positive merits in this case to permitting the mother to withdraw her application in this jurisdiction. As I observed during the course of the hearing, at present the existence of parallel proceedings in two jurisdictions, before two judges with two sets of lawyers is introducing unnecessary and unhelpful complexity and hindering attempts at settlement, as well as incurring considerable expense. Accordingly, I give permission for the mother to withdraw her proceedings under the 1980 Hague Convention.

 

Finally, just for style points, I have to give a nod to Mr David Williams QC for this turn of phrase

The mother accepts that the Supreme Court of the State of New York has jurisdiction in this matter. The father made clear during the course of this hearing through Mr. Verdan that he, likewise, accepts that the New York Court has jurisdiction, albeit at the outset of the hearing Mr. Verdan submitted that this court should make certain substantive welfare orders in respect of Rocco. Whilst in his Skeleton Argument Mr. Setright undertook an analysis of the jurisdictional position in this case (including an analysis of habitual residence) and submits that this court should, upon the withdrawal of these proceedings, give certain procedural directions aimed at any future applications made in this jurisdiction, he does not suggest at this time that Rocco disputes the jurisdiction of the court in New York. Within this context, and with respect in particular to orders originally sought by the father, Mr. Williams submitted that it would be wrong for the English court to seek to “park its tanks” (to use his phrase) on the front lawn of the United States by taking any steps beyond those necessary to effect the withdrawal of the proceedings under the 1980 Hague Convention.

 

 

OK, take custody

 

The High Court in Re D (Children: Abduction) 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2015/3990.html

dealt with a private law dispute between parents over their children.  (I know that most family lawyers are gritting their teeth, wincing and in agonies about the use of the word ‘custody’ in the heading, but it is a direct quote from the key part of the case).

There seemed to be a lot of unhappiness between the parents as to the amount of maintenance that the father was paying to the mother.  The mother and children lived in France, the father in England.  They had a frank exchange of views by email and texts – starting about mother’s request that father extend his holiday with the children for two days and then getting very heated.  Unfortunately for the mother, this exchange of views happened whilst father was having holiday contact with the children so they were in his care, and she at one point used the words ‘OK take custody’

The father duly did, and when the mother sought the return of the children to her care and made an application to that effect relying on his abduction, the father’s case was that the mother had given clear and unequivocal consent in the message “Ok take custody” for the children being in his care, which is a defence to the Hague Convention abduction remedies.

On the face of it, “Ok take custody” is not a wise thing to say to someone when you are arguing about where the children should live, but it is also important to look at the context. Mother’s case was that the words were heat of the moment in a heated and difficult exchange and not to be taken seriously, father’s case was that she meant them literally and clearly and unequivocally consented.

Let’s look at the whole exchange :-

 

 

  • In the summer of this year the parties agreed that the father would bring the children to England for a holiday lasting about five weeks. It was agreed that he would collect them on 26th June and return them on 30th July. Prior to the children’s departure to England, and over the first few days after their arrival, the parties engaged in a lengthy email exchange arguing about a range of matters. Translations of all the relevant emails have been put before me. Initially, they argued about whether the father could keep the children for two further days. It was the mother’s request that he do so; the father refused. The mother asked again; the father refused again. In so doing, he alluded to the fact that he was paying what he described as an “enormous amount of maintenance”.
  • That led to a lengthy email from the mother in which she said inter alia about his payment of maintenance:

 

“It’s your duty to do that. You’re not doing it for me. Don’t pay maintenance if you don’t want to, couldn’t care less. What are you complaining about? Do you want to swap roles, even though my maintenance won’t be such an enormous amount as yours, as you make so clear?”

In his reply the father said inter alia:

“If you’re not there to pick them up on 30th July in the afternoon I will file a written record of your absence and they will go back to school in England.”

In her reply, the mother said:

“Okay, if it was so simple then separated parents would send their children here and there without worrying about their wellbeing. Instead of filing a solution, you threaten me. Okay, I’m waiting to see. Bring them back the last week at school or else I’ll file a complaint for kidnapping.”

The father replied:

“It’s very simple, you agreed to take them back on the 30th of July and I cannot keep them any longer.”

A little later:

“There’s no point in making a fuss about nothing, everything was very clear and the dates were clearly stated.

You’re the one who wants to change the dates, so it’s up to you to come up with a solution.

This is my last email on this subject.”

 

  • All those emails took place on 20th and 21st June. That was the end of the exchange. The children were collected by the father and brought back to England on 26th June for their holiday.
  • On 1st July the email exchange resumed with further arguments about money. In the course of these arguments, at 14.49 on 1st July the father sent an email saying inter alia:

 

“If you’re not happy with the maintenance you get I can take custody back. I’m fed up of you treating me like a bank.

I’m waiting for you to confirm about the 30th of July.”

The email exchange then continued as follows. At 15.12 the mother sent an email saying simply: “OK take custody.” A minute later she sent a further email to the father saying:

“You must still be in Paris? Pop round to pick up the rest of their belongings.”

At 15.23, that is to say some ten minutes later, the father replied:

“I will need a letter from you saying that I have formal custody starting today, I will also use this email.

It’s not very important about their belongings.

You need to pay about €450 maintenance.

I let you have custody because you were creating problems when I had them last year. Unfortunately you carried on creating problems once you had custody.

This time you’ll have to get sorted, it will be the last time they move, you’ll have to sort visits out the best you can.”

At 15.33, some ten minutes afterwards, the mother replied:

“You know the procedures.

Start by making an appointment with the Family Judge.”

At 15.42, nine minutes later, the father replied:

“They are in France because I agreed to it, and that was following procedures in their original place of residency.

This time is simply them coming home.”

At 15.52, some ten minutes later, the mother replied:

“Oh no. They go to school in France and their primary residence is in France. You want to go to prison, abduct them. You will need the French judge’s ruling to put them in a school. Good luck.”

At 15.55, some three minutes later, the father replied:

“Abducting? You just told me to take custody.

I’m not playing around here.

No worries about the judge in France, seeing as you’re the one who enrolled them in school in France and they were staying with you. I’ll let you fill in the questionnaire which you can find here.”

He then attached a website link, presumably to the French court office. At 16.01, some six minutes later, the mother replied:

“Why should I fill this form in? You sort it out.

End of conversation.

Have a good day.”

If you can read that without wanting to bang both of their heads together, I’d like to thank you for visiting the blog St Francis of Assisi. Quick reminder that these people are actually adults, who have responsibility for looking after children.  My take here is that mother was not clearly and unequivocally consenting (things like “You want to go to prison, abduct them” are pretty suggestive that she’s not agreeing to a change of residence), but that she was also pretty foolish in not picking up that the father was more than willing to call her bluff on the sarcastic ‘ok take custody’ email.

  • The leading case on the question of consent in this jurisdiction under Article 13(a) is the decision of the Court of Appeal in Re P-J (Children)(Abduction: Habitual Residence: Consent) [2009] EWCA Civ 588. Consent is a defence which the defendant has to prove. At para.48 Ward LJ identified the following nine principles to be applied when the court is considering a defence of consent:

“(1)  Consent to the removal of the child must be clear and unequivocal. 

(2)  Consent can be given to the removal at some future but unspecified time or upon the happening of some future event. 

(3)  Such advance consent must, however, still be operative and in force at the time of the actual removal.

(4)  The happening of the future event must be reasonably capable of ascertainment.  The condition must not have been expressed in terms which are too vague or uncertain for both parties to know whether the condition will be fulfilled.  Fulfilment of the condition must not depend on the subjective determination of one party, for example, ‘Whatever you may think, I have concluded that the marriage has broken down and so I am free to leave with the child.’ The event must be objectively verifiable.

(5)  Consent, or the lack of it, must be viewed in the context of the realities of family life, or more precisely, in the context of the realities of the disintegration of family life.  It is not to be viewed in the context of nor governed by the law of contract.

(6)  Consequently consent can be withdrawn at any time before actual removal.  If it is, the proper course is for any dispute about removal to be resolved by the courts of the country of habitual residence before the child is removed. 

(7)  The burden of proving the consent rests on him or her who asserts it.

(8)  The enquiry is inevitably fact specific and the facts and circumstances will vary infinitely from case to case.

(9)  The ultimate question is a simple one even if a multitude of facts bear upon the answer.  It is simply this: had the other parent clearly and unequivocally consented to the removal?”

  • It is the father’s case here that the mother in her emails made statements which amount to “clear and unequivocal consent”. He points in particular to her use of the word “consent” in the email to which I have alluded and the subsequent emails, which he invites the court to read as clearly indicating that the mother was genuinely consenting and inviting him to go to the French court to obtain a formal order to avoid being accused of abduction. This is his interpretation of the references in the email exchanges which I have quoted to the court forms.
  • On the other hand, Dr. Rob George on behalf of the mother submits, first, that there was no clear or unequivocal consent and, secondly, even if the mother did give consent in the email exchanges on 1st July, that was plainly withdrawn on 23rd July, seven days before the end of the holiday on 30th July which constituted the point at which the children were retained in this jurisdiction.
  • I have no hesitation in accepting Dr. George’s submissions. First, I do not regard the mother’s words as I have quoted in the email exchanges on 1st July as amounting to “a clear and unequivocal consent”. Plainly what she said in those emails was said in the heat of the moment, and I remind myself of the observations of Ward LJ in the passage from Re P-J which I have just quoted, namely that: “Consent, or the lack of it, must be viewed in the context of the realities of … the disintegration of family life.” This exchange took place in the course of a heated conversation between the parties in which the mother was becoming frustrated and angry about what she saw as the father’s unreasonable behaviour so far as the precise timing of the contact was concerned, the date on which the children would be returned, and matters of money. Whether or not she was justified in becoming frustrated and angry, I know not, but what is clear to me is that her statements made in the emails have to be viewed in that context, and I do not in those circumstances regard them as clear or unequivocal. To my mind, the fact that she referred to abduction only a few minutes later in a further email further shows that the emails do not amount to “a clear or unequivocal consent”.
  • Secondly, even if I am wrong about that and the statements made in those emails were “a clear and unequivocal consent”, manifestly that consent was withdrawn before the children were retained.
  • Accordingly, applying, as I do, the principles in Re P-J which relate to removal by analogy to the retention of the children, any consent that was given was plainly withdrawn on or by 23rd July in the email which I have just read out. This, to my mind, is a blatant example of unlawful child abduction and my plain duty under the Hague Convention is to order the summary return of all three children, which I shall now do.