Category Archives: private law

X-box mother – the judgment

Posted on February 18, 2014 by suesspiciousminds

 

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

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

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

 

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

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

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

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

FINDINGS IN RELATION TO THE PARENTS

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

 

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

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

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

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

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

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

 

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

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

 

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

 

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

 

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

 

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

 

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

 

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

59 Comments

Posted in case law, private law, transparency and tagged , , , , . Bookmark the permalink.

The whole caboodle landed in…

Posted on February 11, 2014 by suesspiciousminds

 

Once in a while, even in family law, you read a case where the circumstances are brand-new  (I think of the Port Harcourt fertility clinic undertaking fake labours, the case where the District Judge took the whole court on an uninvited excursion to a grandparents home to check it out, the peculiar case of whether a child was concieved by artificial insemination or biological insemination) and this is another of those.

SA v BN 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/4417.html

The case began as private law proceedings, about a 3 year old girl named JN. JN’s father sought parental responsibility and contact with her, following his separation from JN’s mother. The mother initially responded by saying that J was not the biological child of the father and DNA tests were directed. It then came to light that JN’s mother had had previous children who were the subject of care proceedings. The Court asked the Local Authority to look into this.

    1. On 10 February 2012 the section 37 report, was filed, it recorded the mother’s failure to cooperate with the preparation of the report and concluded: “At this stage it is not clear if J is at risk of significant harm; due to Miss N’s lack of engagement, J has not been seen and historical information that has come to light has not been discussed with Miss N“. It went on “The local authority will be considering initiating child protection proceedings in respect of J. The local authority will also be making a referral to the First Response Team so that an assessment can be carried out in respect of J and GN to assess the risk in the light of information received from Children’s Services.”

 

    1. When the matter came on again before District Judge Dowding on 15 February 2012, the mother did not attend but she was represented. District Judge Dowding extended the period for the DNA testing to 9 March 2012 and required the mother to attend with J in order to provide mouth swabs a penal notice was attached to her order.

 

    1. On 27t February 2012 the mother and the grandfather took J for the DNA testing.

 

  1. On 1 March 2012 the mother, without any prior notice took J to Kinshasa in the Democratic Republic of Congo (DRC), allegedly for the funeral of her mother, the paternal grandmother

 

The next hearing is where things started to get properly weird. The maternal grandfather and later, the mother began to assert that whilst in the Democratic Republic of Congo, J had been involved in a car accident and had died.

    1. On 5 April 2012 when seen by RC a social worker the grandfather said the mother was in the Congo and had died following a road traffic accident On 10 April 2012 the maternal grandfather sent a text and two photographs to RC a social worker, saying that J had died in a road traffic accident in the Congo on Saturday, 3 of March 2012. The two unidentified photographs show a coffin with people sitting around it and a second photograph of a body of an old woman in a coffin.

 

  1. Four days later on 16 of April 2012 the maternal grandfather sent three further photographs. Subsequently, the maternal grandfather e-mailed what purported to be J’s Congolese death certificate. It was in this context that RC duly prepared the section 37 report, (dated 4 March 2012) attaching to it the photographs and the purported death certificate,.

 

This hearing then, as a prelude to whether the Court could make any orders about the return of J to the country, had to firstly establish as a fact whether J was in fact, deceased.  As the mother was the person asserting this, the burden of proof was on her. Prima facie, she produced quite a lot of evidence.

i) the death certificate of JN, 700/N008080;

ii) medical report of cause of death, 603 2012;

iii) burial permit, number 012/2012;

iv) pro-justice official police report, 0403 2013;

v) expert request form, 007/201204032012;

vi) death certificate of Sisika Masamba; [the grandmother]

vii) hospital transfer ticket for JN.

 

However, on forensic examination, this evidence rather crumbled

(i) Death certificate.

    1. On about 5 February 2013 EM spoke to a Dr. N from the relevant medical facility about J’s case. A transcript of that telephone call was forwarded to the UK. Dr. N was asked about the death certificate of J and said as follows:

 

“I am familiar with this case and I have seen your colleague here. The girl you are talking about did not die here. The number on the documents bears the name of another person. Thank you for raising this problem because we have now discovered that there is a Mafia network in trafficking in documents. We have just had a second case in death certificate from our department but it is a fraudulent document. Briefly, J did not die here, not a trace has been found and I don’t know what to tell you. What we can do is ask you to help us. If the woman in London could give us the contact details of the person who presented her with these documents, after that we could retrace the networks this document is trafficking. I have no further comment.”

    1. Subsequently, on 26t July 2013, Dr. N signed a witness statement in which he dealt with the authenticity of the “cause of death report“, but not the death certificate. It follows therefore that there is no official written record emanating from the Congo confirming that the death certificate, (as opposed to the cause of death report), is a fake. Taken, however, with the information in relation to the report in relation to the “cause of death” form set out below in this judgment, I find on the balance of probabilities that the death certificate filed herein is a fake.

 

(ii)Medical Report of Cause of Death.

    1. Both Dr. N of the medical facility, and the medical director of the medical facility in Africa, have signed witness statements saying that the “cause of death” report is a fake.

 

Initially, CATSR were unable to verify the authenticity of the report as the signatory, a Dr. EKM had been on long-term sick leave. Subsequently, CATSR sent an e-mail to CFAB that Dr. K had been seen on 15 January 2013 and did not wish to discuss the matter. That was not the end of the matter as in a further e-mail AW was informed that Dr. N and Dr. T had told CATSR that Dr. K had been dismissed from the medical facility.

    1. The short statement prepared by Dr. N says as follows:

 

“I believe that this document is a forgery as this document does not relate to the death of JN, but to another person. The document is a false document. The child, JN, did not die in this hospital. Accordingly, I have no hesitation in concluding that this document was a fake.”

(iii) Burial Permit.

    1. On 14August 2012 Mr. M was interviewed Mr. M is the manager of a Cemetery where the mother says that J is buried and which it is said is shown in one of the photographs produced by the grandfather showing the mother and a young man standing next to a wooden cross upon which is written J’s name. Mr. M says (and he thereafter confirms in his statement) that until July 2012 he alone was the person authorised to produce a burial permit for the cemetery. Since July 2012 the system has changed and officials in the town hall now produce the permits. This burial certificate is however dated March 2012 and therefore he would have been responsible for issuing a permit.

 

    1. Mr. M said that the document is a fake for the following reasons:

 

a) Mr. M does not recognise the stamp, (which is not that of the cemetery), or of the signature of the person purporting to sign it.

b) The date of birth is not written in the usual way and the age of the child is simply written as one and a half, which Mr. M says, makes no sense.

c) The telephone number on the document is incorrect as there are ten digits in Congolese phone numbers and there are only eight written on the document.

    1. It was confirmed, for completeness sake, that the burial permits now used and issued by the Civic Hall are in a wholly different format from that of the burial permit carrying J’s name.

 

    1. I accordingly find that the burial permit is a fake.

 

(iv) The Official Police Report.

    1. Mr. MM (Commandant in the DRC police force in Kinshasa), was seen and confirmed that the report carrying his signature is accurate and that an accident indeed took place. There are, however, two matters of significant concern in relation to this document which would otherwise be the only document confirmed by its author to be genuine. The document which is entitled Official Police Report, gives the wrong date for the accident, referring to it as happening at 9 a.m. on 4 March, instead of the date universally referred to elsewhere and which the mother maintains, namely 3 March and not 9 am rather 16.27 was a date referred to in some of the documents.

 

    1. Added to this, it is accepted by Mr. MM that an official register of all accidents is maintained by the police in the city. When Mr. MM was asked for that register and provide confirmation of his report, he said that “they” had just moved offices and the register had been lost.

 

    1. Taken with the totality of my findings in relation to the other documents produced, I find on the balance of probabilities that the official police report is a fake and the officer in question was lying when he said the report was genuine.

 

(v) Expert Request Form, dated 4 March 2012.

The same observations apply to this document as the official police report, the provenance being the same.

(vi) Death Certificate of Sisika Masamba.

    1. A Dr. ZM, who certified this document, has filed a statement in these proceedings saying that this death certificate purporting to relate to the death of the grandmother is a fake. Dr. ZM was seen and said that the certificate was from his hospital, and the name on the document was his, but the writing and the signature were not his. Furthermore, and significantly, the number on the death certificate (700/NO06050) was produced on 7 October 2011 for an entirely different woman called D L and not for the grandmother.

 

    1. The death certificate for the grandmother is a fake.

 

(vii) Hospital Transfer Ticket.

    1. The mother gave evidence that J was initially admitted to one hospital and was then transferred to the hospital where she died. Officials from the original hospital, a Mr. CK and a Mr. KN, were seen at the hospital. They said that the document bore the name of their hospital but that it had not been produced by the hospital. When asked to clarify, they gave the following reasons for saying the document was a fake:

 

a) The transfer tickets produced at their hospital are booklets, whereas this was a full format A4 piece of paper.

b) They do not accept serious accident cases at the hospital.

c) They place the stamp at the bottom and not at the top of their documents and their stamp is small and not the same size as the stamp that appeared on the document.

d) On the transfer ticket in the place marked they always write: “CH” this had not been done.

e) For clinical information they always refer to the general condition of the person and write a comment such as “traumatisation” or “lesion” or “wound“, in the transfer ticket produced there is no reference at all to the general condition of the person.

f) For the destination, if it was a transfer ticket originating from their hospital they would have spelt the destination hospital differently

g) For the dates they always write …/…/20.. and the rest is written in by hand. On this transfer ticket the 2012 had been made by machine.

h) There was no-one in the hospital with the signature that appeared on the purported transfer document. Generally, when a transfer document is produced it mentions the name of the person who authorised the transfer and his signature is at the end, but this document did not bear the name of the person responsible for the transfer.

i) The document produced showed someone else had taken a page from a folder and scanned it in to increase the font for the typeface. In their tickets that the records are keyed in, but they do not much use either type face or the font on the purported transfer document.

j) Finally, the document does not even have a reference in hospital records which are kept at the so-called originating hospital.

    1. On 13 August 2013 Mr. M of CATSR returned to the hospital in order to obtain statements confirming all this information. He met with Mr. C again and on this occasion a Nursing Sister RK. They felt unable to produce a confirmatory statement or comment on the authenticity of the document without the original alleged hospital transfer ticket, which has not been produced by the family.

 

  1. Whilst a signed witness statement to confirm the contemporaneous note of the conversation Mr. C had with CATSR would be preferable, I conclude, on a balance of probability, that the hospital transfer ticket is a fake for the reasons listed by Mr. C and that it bears no resemblance to a genuine transfer document.

 

If you are thinking that right about now, none of this looks too good for the mother, and that faking your child’s death to avoid a contact order is somewhat extreme, you are not wrong

    1. Finally, in considering the evidence purporting to support the mother and grandfather’s case that:

 

i) the grandmother, SM, died on or around 27th of February 2012 and was buried on 3rd of March, and ii) that J was killed in a road traffic accident on 3rd March 2012,

I consider also the photographs produced by the grandfather in April.

    1. In relation to the photographs of the woman in the coffin, there is absolutely no evidence that the woman in that photograph is the grandmother. Further doubt, if necessary, is cast on them by the fact that notwithstanding she was said to have died in February and the photograph was produced in April, the photographs have a Christmas border on them. I do not accept the grandfather’s evidence that it is traditional to put a border on such a photograph and to decorate them in such a way; neither do I accept that this border was other than specifically Christmas related. One glance at the photographs showed these are definitely Christmas decorations.

 

    1. In relation to the photograph purporting to be the mother standing by her child’s grave, I have no doubt that this was staged for the benefit of these proceedings. It shows a wooden cross, easily made, with hand rather machine printing on it.

 

    1. The agreed evidence in this case, endorsed by the doctor’s evidence, is that the level of corruption in the Congo is such that there would be little difficulty in obtaining fake documents of the type produced in this case.

 

    1. In my judgment the documents are fake; there is no credible evidence that the grandmother died around 27 February 2012 or that J died on 3rd of March, whereas there is very considerable evidence that the family have set out to produce false documentation in order to try and deceive this court and, more importantly J’s father, into believing that she is dead.

 

    1. On 11 July 2012 the mother was ordered to hand her passport over to the guardian for safekeeping until further order. According to the mother, her father (the grandfather) wanted the mother to go to France to friends for Christmas. The grandfather contacted the mother’s solicitor to ask whether or not agreement could be reached for her to have her passport to enable her to obtain a visa and thereafter go to France. By consent, an order was made on 13 November 2012 granting leave for the passport to be released, on the basis that the passport would be returned to the guardian within three days of the mother’s return to England.

 

    1. The mother’s case is that she was unable to get the necessary visa and so the planned trip to France did not take place. She says in her statement that she forgot to return the passport and kept it in a handbag where she used it to enrol at college for the new term. In addition, she needed it, she said, in order to make arrangements in relation to her bank account.

 

    1. The mother’s case is that on 2 February 2013 she got the bus to college and on arrival her passport was missing. The mother denies having travelled outside the area and insists that the passport was genuinely lost.

 

    1. The court ordered the mother to produce evidence from both the college and the bank that she had used the passport for the purposes stated. She has failed to produce any such evidence. There must be a very strong suspicion that the mother travelled to the Congo or France to see J over Christmas 2012 and that far from losing her passport, she was unable to give it back to the guardian showing, as it would, that she had travelled to that country.

 

  1. Whilst the court may have strong suspicions that the mother’s account in relation to the passport is untrue, I do not feel able on the necessary standard of proof to find as a fact that the mother travelled to the Congo.

 

So, not only did JN not die in a road traffic accident whilst visiting the Congo with the mother to attend the grandmother’s funeral, the Court didn’t believe that the GRANDMOTHER was dead either.

 

Findings and Conclusions

    1. I am satisfied on the balance of probabilities that:

 

i) The mother left the United Kingdom on 1 March 2012 as a result of the section 37 report and in the knowledge that social services intended to launch child protection proceedings in relation not only to J, but significantly as far as the grandfather was concerned, to J and G, the children of his most recent marriage. I am unable to say to the requisite standard of proof whether concern about the outcome of the DNA test played any part on the decision. ii) That the application made by the mother for a visa allowing her to travel to the Congo made on 15 February was made as a direct response to that report.

iii) There was no telephone call to the effect that the maternal grandmother had died. I have no idea whether she is dead or alive. It maybe that the photographs produced by the grandfather are indeed photographs of the funeral of the grandmother. If so, that funeral took place, I am satisfied, near to Christmastime, some time before, and not in March 2012. The death certificate was a fake.

iv) The mother travelled to the Congo with J on 1 March. Thereafter the mother and J lived with the extended family and probably her uncle until such time as the grandfather obliged the mother to return to the UK in June of 2013. In my judgment it is a moot point as to whether or not she would have in fact returned to this country had not the grandfather travelled to the Congo and obliged her to return.

v) I find as a fact that J did not die whether in a road traffic accident or in any other way and the documentation produced is fake. It follows that I find that J is alive and that the mother and grandfather each know of her whereabouts whether it be the Congo, France or UK.

vi) I am satisfied that the grandfather’s relationship with his daughter is enmeshed and unhealthy at best and that the grandfather has shown on more than one occasion that he will not allow his daughter to move away from him and establish her own life. I am satisfied that he brought the mother’s relationship with the father to an end, wishing her to return to live him.

vii) Similarly, I am satisfied that he would not allow her to stay away in the Congo and that his relationship with her was more important to him than the fact that by bringing her back to England he was separating mother and child.

 

[I haven’t really gotten into the whole dynamic of the relationship between the mother and the grandfather, which is a whole other can of worms in the judgment – but the Judge had to look at whether this tissue of lies had been orchestrated by the mother alone…]

    1. The question then arises as to who masterminded this elaborate façade. In her assessment, prepared in the care proceedings and dated 29 July 2009, the social worker (J Cl) spoke to the mother on a number of occasions. She referred to the mother as appearing: “Distracted and disinterested in most of the questions and did not speak freely. Although she provided an answer to all of my questions, she provided short answers. I found it extremely difficult to draw her into free conversation. B was unable to maintain eye contact in the course of any of my sessions with her.”

 

    1. Those observations chimed with my own assessment of the mother during the course of her evidence. She was virtually monosyllabic. She was courteous and replied to the questions she was asked, but she was throughout completely flat, showing no emotion whatsoever, even when speaking of what, on her case, were the simply appalling events of 3 March 2012.

 

    1. In assessing this mother I bear in mind that whatever the truth of J’s death, she is a young woman who was abused and has been traumatised by her life experiences since she came to this foreign country at fourteen-years of age. In those circumstances it would not be right for me to use her demeanour as evidence against her assertion that J died as opposed to evidence of a deeply troubled young woman.

 

    1. I do, however, feel able to say with certainty that this mother would have been quite unable to have planned and put into effect the removal of J to the Congo and to have thereafter arranged the production of the documentation.

 

    1. It follows that I am satisfied that the grandfather has organised and manipulated events every step of the way. It should come as no surprise to the court that J was spirited away to the Congo. DN was sent back to the Congo to avoid the consequences of his having raped and impregnated his half-sister and I have no doubt that the mother would have been sent back to the Congo had the police not acted on the tip-off after the grandfather’s arrest for rape. Throughout the papers one can see the grandfather’s manipulative hand. He is there at each appointment, making arrangements, organising things and was, and I am satisfied remains, in complete control of every aspect of his daughter’s life.

 

    1. The grandfather made it clear that the uncle in the Congo is the member of the family who controls matters at that end that is where the mother lived I have no doubt that the grandfather and the uncle between them organised and obtained the various documents.

 

    1. The mother has recently remarried and is expecting another child. It remains to be seen whether she will now be allowed to make a life of her own.

 

    1. The grandfather as unrepresented Intervener has played a full part in the proceedings. He has been courteous and polite throughout. On one level he gave plausible evidence, although his self-centred approach was apparent at every turn. He was considerably more animated than the mother, particularly towards the end of his submissions when he was bordering on tears but tears of self-pity in relation to the effect the proceedings had had upon him. This was in contrast to the way in which he spoke of the death of J, in positively callous manner, saying that the hearing of her death had “spoilt my day, spoilt my shift at work” and saying, quite brutally, that once J was dead he had destroyed everything about her, including any photographs he may have had.

 

  1. I am satisfied that the grandfather knows of the whereabouts of J and that he could organise, if he so chose, to ensure her return to the UK, her country of habitual residence immediately. Accordingly, I find that J is alive and will make a raft of orders designed to ensure her return to this country as soon as practicable.

 

I know that private law proceedings can get vitriolic, and even have false allegations thrown around, but telling a father that his daughter is dead sets something of a new low.

2 Comments

Posted in case law, fact finding, private law and tagged , , , . Bookmark the permalink.

Rearrange these three letters – F, W, T

Posted on November 25, 2013 by suesspiciousminds

This is the private law case of Re C (A child) 2013, and frankly, the Court of Appeal missed a trick in not naming it Re (WTF?) 2013    (which also makes me pang for a Court of Appeal authority involving a child named E, where wind plays a major feature, so they can call it RE-E-Wind  – when the crowd say Bo, Selecta)

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1412.html

The case involves a five year old boy, C, who became the subject of residence and contact applications, his parents having separated.

  1. The order complained of was made in the county court on 6 March 2013 in Children Act 1989 proceedings issued by mother in March 2012. The order prohibited father from removing his son from the care of mother or from his primary school and provided for indirect contact between father and son in the form of letters, cards and small gifts. It follows that direct contact was refused. In circumstances which I shall describe the order was the culmination of a series of serious procedural irregularities which caused the decision to be unjust. The order was also wrong given that one of the irregularities gave rise to an assumption of alleged facts against father when the court had not conducted a finding of fact hearing and accordingly the judge’s welfare evaluation was based on what is said to be a false premise. 
  2. It needs to be understood that the allegations made against father are serious. The most serious of the allegations and the assertions of risk were not made by mother but by the Cafcass practitioner who was the family court advisor. The allegations have not been decided and nothing which follows in this judgment should be taken to minimise the risk that might exist if the allegations are true. Equally, if the allegations are not proved or the risk assessment is as a consequence or otherwise wrong, the child who is the subject of these proceedings and his father have been seriously failed.

The case peculiarly seems to have proceeded on the basis that allegations made about father had been proven by the Court, when in fact they had not yet been tested. That failing, which is bad in itself, increases when one realises that the main source of the allegations of risk was not one of the parties, but the CAFCASS officer who had been appointed to be the independent eyes and ears of the Court.

In fact, by the time the case got to a substantive hearing, the CAFCASS officer was refusing to visit the father at home, refusing to meet with him in the officer unless there was another worker present, was unable to complete the section 7 report and had become the complainant in criminal proceedings about father’s behaviour towards her.

The opinions that were being expressed by the Cafcass practitioner were not just in her role as a family court adviser independent of the parties. She was also a complainant in criminal proceedings. This court has come to the very firm conclusion that it was wholly inappropriate for the family court advisor to continue to act as the court’s advisor and the child’s ‘effective access to justice’ at a time when she was the complainant in criminal proceedings against the father. It was submitted to us that it is a regrettable fact that Cafcass practitioners are placed in positions of real conflict by complaints and threats made against them and that their priority must be to try and put that to one side and undertake their duties on behalf of children. We acknowledge that and the extraordinary work that they do in the public interest but there is a dividing line in terms of due process and conflict of interest that was crossed in this case. A criminal complainant cannot advise in a family case where the person accused by that complainant is a party.

 

(I’d suggest that one doesn’t need Basil Rathbone, Robert Downey Junior or Benedict Cumberbatch to help one in reaching that conclusion. How on earth can a CAFCASS officer be independent at that point?  That doesn’t mean that the Court have found that the CAFCASS officer was wrong or right in her complaints, just that by that point, she could no longer be assisting the Court in making recommendations about the child’s future – whatever was happening between her and the father had contaminated the independent nature of the role which is so integral to it)

However, she did continue, and prepared a report which understandably was not very favourable to father and considered that he presented an unmanageable level of risk.

 

 

  1. The report filed on 19 December 2012 was 19 close typed pages in length. It described detailed allegations of fact previously unknown to the court in terms which read as if the allegations were true. The reader is left in no doubt that the family court advisor believed the allegations to be true. At no stage was it highlighted that the facts had not been established by a process of fact finding in a family court. It is entirely unclear what facts father had conceded or might concede, which is not surprising given that he was not involved in the preparation of the report. The author described the risk in the case as being:

     

     

    “father’s lack of understanding of the impact of his offences on his child in relation to his risk taking behaviours, domestic violence, risk of possible child abduction; the father’s mental health and related issues, public disorder and so on.”

  2. A very detailed analysis of risk was conducted by the family court advisor with the benefit of input from professionals contacted by her during the preparation of her report. That included whether father’s mental health issues including suicidal ideation, depression and anger and his own social isolation were relevant (on the assumption they were accurately described). One of those professionals compared father with Raoul Moat (the panel beater, tree surgeon and bouncer with criminal convictions for violence who shot his ex-partner, killed his new partner and seriously injured a policeman in 2010). That was not only a professionally inappropriate comparison, it was presumably quoted in the report for maximum impact. Despite that, the author clearly indicated in her report that father’s “mental health status remains an un-assessed risk factor“. The report recommended the order made by the judge three months later. It did not recommend that a fact finding hearing should take place.

 

Okay, you are probably thinking by now that this case was something of a car crash – there are allegations being reported as though they were facts, the independent CAFCASS officer being the complainant in criminal proceedings about father and lurid comparisons of the father to Raoul Moat being made without much evidence.

Stay with me, it is about to get worse.

The Court of Appeal note that both parents were litigants in person, and though they were doing their best with the thorny process, were not able properly to highlight to the Court exactly how messed up things had become. The Court of Appeal describe the judicial handling of the case as ‘fire-fighting  – it may even have been quality fire-fighting, but it was not Case Management’

  1. On 21 December 2012 the proceedings were adjourned to a contested hearing because father did not accept the Cafcass recommendation. The first available date was on 6 March 2013 before a Recorder. There were no attempts in the intervening period to update any of the information contained in the Cafcass report, in particular about father and the risk that it is said he presented. Although both parents were given permission to file further statements the question of how father could or should respond to the serious allegations in the Cafcass report was not addressed, that is the key issues were not identified to be answered and a direction for a fact finding hearing was not made.

     

     

  2. Appointments of the type I have so far been describing take time, particularly where one or more of the parties are litigants in person as a consequence of the provisions of LASPO 2012. If the dispute is not immediately susceptible of conciliation or out of court mediation it will require a lawyer’s analysis. This is after all a court of law. In the absence of lawyers, the judge has to do that and to do that without assistance and sometimes with quite vocal hindrance. That requires more time than in a circumstance where the lawyers can be required to apply the rules and practice directions, produce the witness statements, summaries, analyses and schedules, obtain instructions and protect their lay client’s interests. Where a court is faced with litigants in person the judge has to do all that while maintaining both the reality and perception of fairness and due process. I do not criticise any of the judges involved in this case. Each was handed a case about which he or she knew nothing and given time only to deal with the most pressing issue or two that had arisen. That was fire fighting, it may even have been quality fire fighting but it was not case management.

 

So, we have a car-wreck with the CAFCASS officer, both parents are in person – looking back earlier the only statement from mum dealing with the allegations against dad was not actually evidence (it had no statement of truth) and the Judges who looked at the case were doing their best, but hadn’t really gripped it.

It still gets worse

On the morning of 6 March 2013, that is immediately before the contested hearing began, the family court advisor filed and served a 22 page document entitled ‘Chronology of Significant Events’. The court had not given a direction to permit such a step and so far as can be ascertained there was no advance notice of the same. The document was a detailed schedule of hearsay evidence that might have been appropriate if it had been directed by a court as a lawyer’s forensic summary of the allegations and materials that had already been filed. It was not a summary of the evidence filed unless it could be argued to be a record of the source materials for the section 7 report that was filed three months earlier. It should not have been admitted without argument and it was clearly highly prejudicial and of questionable probative value. It became the primary evidential document in the case, replacing the mother and almost everyone else who might have had something to say on a question of fact. The document was made available to father on the morning of the contested hearing that gives rise to this appeal.

So in the context of all I’ve previously said, the CAFCASS officer then turned up on the day of the hearing, against litigants in person, and ambushed them with a 22 page document, full of stuff that wasn’t actually evidence.

Does it surprise you that I am about to say – it still gets worse

  1. In that context, father made an application to adjourn the contested hearing. His primary purpose was to adduce up to date evidence about his mental health. He asserted that his treatment was susceptible of successful completion and that he would be able to demonstrate that with materials from the professionals involved. In addition and unknown to the family court advisor, the probation officer she quoted in good faith had been replaced sometime in 2012 and as this court now knows, the risk described by father’s senior probation officer who had detailed knowledge of father’s supervision was fundamentally different. In simple terms, his analysis was that father presented a low risk.

     

     

  2. It is not surprising that the judge who was new to the case was unimpressed by an application to adjourn given the lengthy delay there had been in getting the first contested hearing listed. Had she known that a fact finding hearing had never occurred she might have been able to find a constructive way to use the hearing to good effect and still afford father the opportunity to update the evidence about risk and to fairly deal with the family court advisor’s materials.

So father wasn’t given his adjourment, to deal with the ambush that he’d been hit with. And the Court didn’t properly appreciate that the allegations being thrown at him were untested allegations rather than determined facts.

What do you think? Does the next bit make it better or worse? Place your bets ladies and gentlemen.

  1. The hearing then commenced. The mother did not give evidence to substantiate her allegations and was accordingly not questioned by anyone. As a matter of pure technical form, her document of 12 August 2013 was never admitted into evidence. There was therefore no evidence from mother for father to meet and he was accordingly afforded no opportunity to test the direct evidence of domestic violence. The only evidence came from the family court advisor. As I have remarked, she treated the allegations as fact. She gave evidence based upon her report and her substantial chronology, that is hearsay evidence about the facts in issue as well as reported opinion from other professionals and her own opinion. I do not say that this was entirely inappropriate. It is appropriate for a family court advisor to identify the facts or alleged facts she has relied upon and the opinions of others that she accepts or adopts in coming to her own opinions and recommendations. She is after all a qualified social worker whose skill and expertise are those of an expert in that field. That said, had a fact finding hearing been held, third hand hearsay evidence of facts in issue might not have been given great weight in the absence of the evidence of mother or a concession from father.

     

     

  2. I do not ignore the possibility that an alleged victim of domestic violence from an allegedly over controlling or dangerous perpetrator may need considerable support to give her evidence. At the very least it should be established just what evidence she is able to give and an appropriate opportunity should be given to the alleged perpetrator to challenge that evidence. That could have been done by case management or, as I shall describe, by a more inquisitorial process that protected the interests of all involved. What was not acceptable in my judgment was the presentation of facts that were in dispute as if they were decided. The judge who heard the case (and who would have had no knowledge of it before she walked into court on the morning) was entitled to know that contrary to the impression given this was a fact finding hearing where the facts were in dispute. The hearing that was conducted was accordingly not a fact finding hearing, it was a welfare hearing which heard about the severe risk that it was said father presented to mother based upon facts that had never been tested let alone determined by a family court.

Oh God… and just when you think that I must be finished, and things could not possibly have got any worse

To add to the air of unreality the family court advisor gave her oral evidence from behind a screen. Special measures in a family court are not fixed by primary or secondary legislation as they are in the Crown Court. They can however be used in a similar way and for similar reasons. They are a means of facilitating the evidence of someone who is vulnerable so that the quality of their evidence is not damaged by their vulnerability. Children who give evidence often do so with the assistance of special measures such as a video link. It is not inconceivable that a professional witness might need the same facility but it is much less likely: Re W (Care Proceedings: Witness Anonymity) [2002] EWCA Civ 1626, [2003] 1 FLR 329 at [13]. The mischief in this case is compounded by the fact that the family court advisor gave her evidence as an officer of the state behind a screen rendering her effectively anonymous and unseen and she was afforded that facility without due process. If it was said that such measures were necessary that should have been on application to the court on notice to the father and to the mother and full reasons should have been given. There was no such application and if there was neither this court nor the father were aware of it and there is no record of any determination. There is no order. It should not have happened in the way that it did.

 

Scroll back, read that again  – the CAFCASS officer gave her evidence from behind a screen.

Re WTF 2013

Needless to say, the father won his appeal against the order – he was fortunate that he realised, or got advice, which showed him that (as the Court of Appeal said) he had been denied Natural Justice at almost every stage of the process, and the final decision was fundamentally flawed in almost every regard.

 

The Court of Appeal give some useful guidance  for management of cases involving litigants in person (this can only be aimed at Judges, since there’s no prospect of LIPs being aware of this case, never mind drawing judicial attention to it)

  1. I have intimated that a more inquisitorial process may help those judges who need to deal with very difficult cases involving litigants in person where emotions can run very high. At the hearing at which the section 7 report was first available there was an opportunity for detailed case management. In less fraught cases this is often a real opportunity for dispute resolution in the same way that an Issues Resolution Hearing provides that facility in public law children proceedings. That was the latest of the various hearings at which the key issues of fact and opinion could have been identified and if not resolved, described on the face of an order so that the parties and the court would have been clear about the purpose of the contested hearing. Directions could have included providing short answers to the key issues identified and up to date materials which would have avoided father’s last minute adjournment application and his successful application to this court to adduce additional evidence.

     

     

  2. At the hearing and given that it would have been clear whether the key issues included the need to make findings of fact, the judge can control the process to ensure that it is fair. Having been sworn, each party can be asked to set out their proposals and to confirm their version of the disputed key facts. They can then be asked by the judge what questions they would like to ask of the other party. Where lawyers are not instructed the judge can then assimilate the issues identified into his or her own questions and ask each party the questions that the judge thinks are relevant to the key issues in the case. It may be appropriate to give the parties the opportunity to give a short reply. In that way the issues can be proportionately and fairly considered. 

     

  3. At the conclusion of the hearing before us it became clear that separate proceedings under the provisions of the Family Law Act 1996 had been commenced by mother without notice to father. This court has not had the opportunity to scrutinise that process. Yet another judge is involved but directions have been given in those proceedings for the facts in issue to be identified and resolved. Given that this has led to detailed witness statements being filed by the parties, we shall direct that any further directions in those proceedings be listed before the same judge who is allocated to determine the Children Act proceedings. 

     

  4. The problems which have complicated this case are hopefully rare. The solution is to use the processes of the court to better effect. The family court is a court of law not a talking shop. No matter how much its judges will strive to obtain safe agreements between the parties, its rules, practice directions and forensic protections are for a purpose – to do right by all manner of persons, without fear or favour, affection or ill will.

10 Comments

Posted in cafcass, case law, private law. Bookmark the permalink.

From Russia, with love

Posted on November 5, 2013 by suesspiciousminds

 

The committal decision in Re Davies 2013

 

http://www.bailii.org/ew/cases/EWHC/Fam/2013/3294.html

 

This one is likely to rekindle the debate, both amongst professionals and the wider public, on the powers of the Court to deal with breaches of court orders and contempt of court.

 

There are some, John Hemming MP springs to mind, who consider that imprisoning people for family Court matters which fall far short of being criminal offences is not acceptable in a modern society and illustrative of the family Courts having too much sway and not enough accountability. The secrecy/confidentiality of the family Courts just exacerbates these concerns. They might well say that punishment and resolving family disputes don’t go together.

 

There are others,  I suspect many in the Father’s Rights movements, who would say that the family Courts are largely toothless when it comes to dealing with people who have no respect for orders and decisions and just take matters into their own hands to thwart contact. If you have spent two years of litigation and jumping through hoops and possibly thousands on legal costs to get your contact order and then it doesn’t happen because the parent with residence of the child just ignores the order, then you can see that you would WANT there to be consequences for breaking court orders and you would WANT those consequences to be dished out.

 

On the one hand here, we have grandparents who spent five days in prison because they did not want to tell the Court where their daughter had taken their granddaughter Alice too.

 

On the other, we have a mother who defies a Court order for contact, takes the child away to another country and leaves the father not knowing where his child is or how to find her, who then gets her family to lie in the witness box and breach Court orders that are designed to locate this mother and get her to bring the child back to the UK so that the arguments can properly be heard. 

 

 

This particular case made some of the national press, who took the understandable emotive line of how awful it is to lock up grandparents for not telling the Court where the child was.

 

One also has to look at it from the side of the father, and of the child who has been denied the lawful contact she should have been having with her father because the mother took the law into her own hands.  [i.e one could have written the story as a very emotive one about how the child had been whisked away from dad and he had no idea even which country she was in or whether she was safe]

 

Firstly, it is worth noting that although the grandparents and the aunt were locked up on 25th October, the Court adjourned sentencing until 30th October (the judgment on that is not yet reported) to allow them the chance to get some legal advice and do what is called “purging their contempt”   (in essence, apologising to the Court for breaching the orders and complying with the order now by giving what information they have about the child’s whereabouts).  

 

Secondly, it is worth noting that although the father was present in Court and represented, he was asking for the family members NOT to be imprisoned.

 

Of course, with the media being the way it is, what we want is a simple good guy and a simple bad guy, and where the stories are more complex than that, the press coverage struggles to set out the nuances. So much easier to just side with either the grandparents or the father, and paint the other side as being wicked.  I don’t even know that you could paint the mother as the bad guy here – she was certainly foolish, but until she gets back and has her say, we don’t know what lies behind her decisions.

 

[The grandparents were released on 30th October. As I understand matters, the Aunt is due to appear in Court on Tuesday 5th November]

 

 

Anyway, by way of background

 

  1. In this matter I am concerned with one young child, Alice Gabrielle Davies, who was born on 18th September 2008 and is five years of age. Her mother is Jacqueline Davies. Her father is Julian Brown. Her maternal grandparents are Patricia Anne Davies and Brian Davies. Her maternal aunt is Melanie Williams. The parents’ relationship broke down and they had recourse to court proceedings. The father was unable to have contact with Alice. Those court proceedings resulted in an order being made on 29th June 2011 for the father to have contact with his daughter on a regular basis. In fact, subsequent to that order, he has not seen her since 18th December 2011.
  1. On 1st March 2012, the mother submitted an application for the cessation of contact because she was planning to leave the jurisdiction. In the reasons that she gave for applying for that order she said:

“Unfortunately, because of the constant need to take time off to prepare for and attend court, my job became untenable and my employment terminated. So due to the financial circumstances of not working and the implications of the continuing costs of solicitors’ fees etc, which has left me in debt and without the security of a job, and trying to sort out the finances of the here and now, I have had to make an uncomfortable decision. Therefore, because of the need to support my child and myself and the economic climate in the United Kingdom, after months of looking for work, I have had to take drastic action and have been forced to seek a position further afield, leaving my roots and family support.”

  1. Sometime after that application – the date is not at all clear – the mother did indeed leave this jurisdiction with Alice. From the enquiries made by the Tipstaff, it appears that she flew to Russia. There is no record of her returning from Russia to this jurisdiction, and it is unknown whether she remains living in Russia with Alice or in a country somewhere else.

 

So, the father had to go to Court to get an order for contact with his daughter, the contact wasn’t provided and mum intended to apply to discharge the existing contact order because she wanted to move abroad.  What she then did, in leaving the country with the child without the Court having granted permission, was unlawful.

 

In those circumstances, it is entirely understandable that the Court made orders that Alice should be returned to the UK, and that she should be in the UK whilst the Court considered the respective applications of the mother (to end dad’s contact order and move abroad) and the father (to continue his contact and presumably resist any move abroad unless his contact was going to be adhered to)

 

It is important to note that the Court had not made any decisions about who was right in the long-term on those applications, just that it was premature to move Alice abroad before both sides had their say and the Court reach a view.

 

Because of the difficulties in tracking down the mother and Alice, the Court used their powers to make orders that members of mother’s family provide any information they had about where mother and Alice were.

 

  1. Mrs. Davies, accompanied by her husband, Brian Davies, attended before me yesterday, and I made an order requiring her, on one last chance, to divulge the details of the whereabouts of Alice and the mother. During the course of that hearing the maternal grandmother, Mrs. Davies, gave evidence on oath before me. She told me repeatedly and in no uncertain terms that she had no means by which she could make contact with her daughter and that she was solely reliant upon her daughter making contact with her, which she did from time to time. She also told me repeatedly that she had no idea where her daughter or Alice were in the world. Mr. and Mrs. Davies then left court and travelled by car back to Cardiff.
  1. During the course of that hearing, at the request of the Tipstaff, I required Mrs. Davies to give him the name and address of her other daughter, Melanie Williams. The police attended upon Mrs. Williams last night and served her with the location order and explained that order to her, and the duty that she was therefore under to cooperate with this court and to give information that was available to her about the whereabouts of Alice and her sister Jacqueline.

 

The police, in serving those orders, asked some questions of the family, and it was their answers to these questions which got them into difficulty and eventually into cells  [underlining mine, for emphasis]

 

  1. I have statements from the two police officers who attended upon Mrs. Williams – a Police Constable and a Police Sergeant. The statements record the self-same evidence, namely that when they asked Mrs. Williams when she had last been in contact with her sister, Jacqueline, she replied, to start with that it was “about three years ago“. She insisted that since they were 18 and had left home they had gone their separate ways and they had not spoken for some time. She said that she had sent some emails to her sister. Those had not been returned undelivered, but she claimed that she had not received any reply. She continued to deny having any knowledge about where her sister lived. The police officer records as follows: “Whilst looking for the mobile number for Patricia Davies, I noticed a contact ‘Jacq’. I asked Melanie if this was her sister. She did not reply. I therefore noted down the mobile number”. Again, the police officers asked Mrs. Williams about when was the last time she had contact with her sister. The police officer says: “Melanie eventually stated that she had had a Skype text conversation in August 2013 but insisted she did not know where her sister had been when they had that conversation.”
  1. Because one of Mrs. Williams’ daughters was present at the home when the police were there, they advised her that they were minded to arrest her for breach of the order. They therefore contacted the maternal grandparents, who were still en route from this court, to look after their granddaughter. The police were still present when Mr. and Mrs. Davies arrived. The Police Sergeant explained to all three of them the reason they were there and urged them to provide any information in order to prevent the arrest of Mrs. Williams. The Police Sergeant then sets out in his statement the following: “Patricia Davies then said loudly, ‘I can’t, I can’t, I won’t. They’ll take the baby away’.” The Police Sergeant again urged the grandmother, Mrs. Davies, to provide any details she had of her daughter Jacqueline. She then told the police officer that she had a mobile number. She went out to her car and came back and gave the telephone number to the police officer. The Police Sergeant asked her to telephone that number. He records Mrs. Davis replying: “Jacqueline wouldn’t answer because it was the middle of the night where she was”. She was asked how she knew it was the middle of the night. She said: “I don’t know”. She was again asked: “How do you know it is the middle of the night?”, and she replied: “Because it’s thousands of miles away”. She was asked how she knew that, and she said that Jacqueline had told her. She finally said: “You’ll just have to arrest me. I don’t care what they do to me”.

 

 

The family were brought back to Court on 25th October and gave evidence to the Court about these matters. On the face of it, they had a contact telephone number for the mother, knew where she was and were refusing to provide the information “You’ll just have to arrest me. I don’t care what they do to me”.  The prospect of them being imprisoned for contempt was very high as a result of this.

 

  1. Over the course of this afternoon, Mrs. Davies, Mr. Davies and Mrs. Williams have given evidence on oath. Mrs. Davies gave evidence first and then her husband and then her daughter, Melanie. Having considered their evidence, I am in no doubt whatsoever that all three of them are lying to me. I find that Patricia Davies has lied and has admitted lying on oath when she told me yesterday that she had no mobile number for her daughter and had no means of contacting her. It is wholly remarkable then that on her journey back from this court she is sending texts to her daughter. Of note, she was asked by the police officers prior to them arresting her whether she had been in contact with Jacqueline today – that is yesterday. She replied: “Yes, but by text but I’ve deleted the texts now”. Mrs. Davis claimed that those texts were deleted because that is her normal practice. I regret to find I do not believe her. I find that she deleted those texts so that nobody would be able to see what she had sent to her daughter or what her daughter had sent to her. I am satisfied, so that I am sure, that Mrs. Davis did say to the police officers: “I can’t, I can’t, I won’t tell you”. That is entirely in keeping with her final comment to the police of: “You’ll just have to arrest me. I don’t care what they do to me”. She said in evidence to me that she knew it was the middle of the night where Jacqueline was because she said Jacqueline had told her. I find once again, so that I am sure, that Mrs. Davies is lying to me. She knew it was the middle of the night because she knows precisely where her daughter is, but she refuses to tell this court.
  1. In relation to Mr. Brian Davies, in my presence in court yesterday I heard him, and I am quite satisfied and sure I heard him, instruct the maternal grandmother when she was giving evidence “not to tell them”. He denied that in the witness box. Mr. Cheesley, the Tipstaff, told me at the start of this hearing that after I had risen from court yesterday Mr. Brian Davies had said: “I’m the head of the family. I told her to leave the country”. Initially, he appeared to accept that that is what he had said, but then he changed it and said that, no, he had not told his daughter Jacqueline to leave the country, he had told her to leave his house. However, he then claimed not to remember whether his daughter had left the house immediately after he had said that or how long a period it was after he had apparently told her to leave the house that she in fact did so with Alice. I note that it is significant that in her application of March 2012, giving her reasons for leaving this jurisdiction, the mother (a) does not assert that she had been thrown out of the home where she was living by her father and (b) quite the contrary, she states that she had a difficult decision to make which will result in her losing the support of her family.
  1. I regret to find so that I am sure that Mr. Brian Davies is lying when he denies saying in court yesterday that he told his daughter to leave the country. I regret to find that I am satisfied, so that I am sure, that he is lying when he claims he threw his daughter out of the house. He claims to have had no contact whatsoever with his daughter for about four years or thereabouts. I regret he gave me no satisfactory explanation whatsoever as to why he should take that course with his daughter or why he does not like her anymore and does not want to have any relationship with her. The best he could come up with was that it was because she had had sex before marriage with her then partner, which resulted in the conception of Alice. I am satisfied that Brian Davies is lying to the court, that he has information he could give but he refuses to give it.
  1. In relation to Melanie Williams, I regret to find that she has lied to this court. First, I note that she told the police that it was some three years since she had last communicated with her sister, Jacqueline. She then changed that in evidence to me, that it had been about two and a half years since she last spoke or had communication of any kind with her sister. When she was reminded of what she had told the police yesterday, that in fact it was August 2013 when she had last had a Skype text conversation, she was unable to be clear in her recollection that that took place, although she admitted that she had said that to the police. When I asked her about what conversation she had with her sister, she could not remember any details at all, and then told me that it was not a conversation at all, and she had not said to the police it was a conversation. She had sent a text to her sister, she said, but received no reply. She then accepted that she had said to the police it was a conversation that she had had with her sister in August 2013, but maintained that that conversation consisted of merely sending a text to her sister and receiving no reply. I regret to find, so that I am sure, that in giving those accounts to the police and to me, Mrs. Williams is lying.
  1. I am satisfied, when I consider the reasons why Mrs. Davies, Mr. Davies and Mrs. Williams are lying to this court, that it is for one reason and one reason only (because, although I have pondered the matter, I can think of no other reason for them lying) and it is this: they know full well where Jacqueline and Alice are but they refuse to tell this court or the Tipstaff where that is because they do not want to assist in any respect in the attempt to try and secure the return of Alice to the jurisdiction of this court. I am satisfied, so that I am sure, that they also have the means of communicating and contacting Jacqueline but they have sought, particularly Mrs. Davies, to obfuscate that position and they have not told me the truth about the communications that they have had with her not only over the last few years but in the last few months and in the last few days. Again, they are lying about those matters because they do not wish to assist this court in seeking to recover Alice back to this jurisdiction.
  1. On those findings, I am in no doubt that all three of them are in contempt of this court

 

 

 

Of course, on a completely human level, one can empathise with the family, they had been asked by their daughter / sister to keep her secrets and not tell the Court or the father where she was, and they ended up in an intolerable position of having to obey the Court order or keep their promise.  Without being in that intolerable position, it is really hard to know how you would react.

 

It is always important though, to have an eye on the other side of the case, which is that the father and child were kept apart and denied contact as a result of the mother acting unlawfully and asking her family to act unlawfully to help her, include them lying to the Court;  and the Court has to treat matters like this very seriously.

 

If there’s no consequence to breaking court orders or lying to the Court, then what’s the point of the Court at all?

 

I think that if I had been hearing the case, I  probably would not have imprisoned them pending the sentencing hearing, and allowed them to have a short opportunity (say two or three days)  to reconsider their actions knowing that a prison sentence was on the cards. But the Judge had been faced with lies in the witness box on two separate occasions,  even after they had been blatantly caught out, and of course the risk that wherever mother currently was, the family might have tipped her off to run away. It would not have been an easy decision to make.

 

Should the remedy or sanction be imprisonment? Should anyone really be imprisoned for something that isn’t a criminal offence?  There are those who think that imprisonment ought to be reserved for criminal matters, and that one ought not to be faced with it as a result of breaching orders in the family courts.

 

I suspect that there are also parents who have gone to Court and argued successfully for contact with their child, who see orders flouted or ignored or thwarted by the other parent, who are pulling out their hair at how toothless the law seems to be on dealing with a parent who has no intention of obeying Court orders, who would be devastated at the one sanction that the Court has being removed.

 

It depends entirely on which side of the fence you happen to be on, or which group of people are telling you the story. If you were sitting down talking with the grandparents in this case, you’d form a very different view of it than if you were sitting down with the father.

 

I think those are legitimate questions and I’m sure the debate will continue, but in the meantime whilst the law provides for imprisonment for contempt of court and failure to comply with court orders, those who are served with court orders need to bear in mind that this is a risk they take, even if they are pensioners trying to do what they think is right for their own daughter.  

 

 

4 Comments

Posted in case law, private law and tagged , , , , . Bookmark the permalink.

You have the right to remain silent (or do you?)

Posted on September 13, 2013 by suesspiciousminds

 

The decision to give permission to appeal in Re K (children) 2013 might well become an important one, when the full appeal is heard.

I have written about whether the statutory position that a parent can give evidence in care proceedings and that evidence may only be used in a criminal trial for perjury – thus giving a preservation against self-incrimination, has been badly eroded

Is there a meaningful right to silence in care cases?

and Re K is a very good example of how this can make a massive difference in the case.

http://familylawhub.co.uk/default.aspx?i=ce3473

The father in Re K had been at the wrong end of a fact-finding hearing about what appear to be very grave allegations (there’s reference to a stabbing and a fire) in private law proceedings – it appears that the original allegations and original findings were that mother had stabbed father and set his home on fire, but these findings were fundamentally reversed at a later hearing, finding that father had done these things himself in order to ‘frame mother’

The Court then adjourned for further assessment, having given the judgment in the fact-finding hearing that father had done things that he ought not to have done. Part of that further assessment inevitably covers whether father has reflected on the findings and come to terms with them. At the final hearing, the Judge formed the view that father had not, and that his unwillingness to move forward was indicative of problems in the future. The father’s position was that he was inhibited by the pending criminal proceedings, and knowing that whatever he said could be reported to the police and ‘shape their enquiries’

 

The father’s statement made reference to his right to avoid self-incrimination and that as a result he was not able to say anything about the fire and the stabbing, on the grounds that to do so would have potentially incriminated him in criminal proceedings. That obviously made it difficult for him to make admissions or be frank about the circumstances in which those serious incidents occurred, his part in them and why he says that they would not occur again.

Initally, McFarlane LJ hearing the permission hearing was sceptical about the self-incrimination point, believing as so many of us have done, that the provisions in the Children Act 1989 are sufficient to allow a parent to speak freely and frankly without fear that their words will be used against them in criminal proceedings.  He made a point of asking father’s counsel whether, if self-incrimination had been removed as a factor, the father’s position was that he would have given clearer answers to the judge and those conducting the assessment, and the answer was “yes”

Although it seems from the permission that McFarlane LJ simply felt that the legal advice that father was following was wrong, and that s98 was a complete protection, he accepted that the father’s statement made it very plain that his position was based on that legal advice about self-incrimination and that there was an argument to be had about whether the trial judge had dealt with this properly or whether the decisions made about father’s contact were based on an incorrect conclusion that father was utterly in denial about the events. Permission was thus granted for the appeal.

 

It may be that the Court of Appeal either identify that the provision for evidence of inconsistent statements to be used in a criminal trial clashes with s98 and there is a live problem here to be addressed in cases of this kind, or that they conclude that s98 trumps any provision about inconsistent statements and thus what is said by parents in the family court CAN’T be used against them. Either course, frankly, is helpful and preferrable to the current situation where a parent can be criticised for not being frank and forthcoming and has to do so at the potential expense of having what they say used against them in criminal proceedings if it contradicts any previous statement made to the police.

21. I considered it appropriate to ask Miss Nartey during the course of submissions to take instructions on whether, if self-incrimination had not been a factor in the case, the father would have given clearer answers to the judge as to his involvement with one or other or both of these two key incidents, and the answer came back directly on instructions from the father, “yes”, he would. Plainly if he was going to deny matters, then legally and evidentially the matter would be much more straightforward, but he does not take that course. It is a more sophisticated matter. – See more at: http://familylawhub.co.uk/default.aspx?i=ce3473#sthash.Vihw7zMQ.dpuf

 

16. It is plain on that analysis of the judge’s judgment that much was put upon the father’s inability to say in terms to Dr Drennan and to the judge that he accepted that he did generate the stabbing incident and was responsible, directly or indirectly, for the arson. Ms Nartey, at paragraph 3(iii) of the grounds, says the judge erred in law in interpreting the father’s evidence in that way. She submits that the judge gave no warning to the father against self-incrimination and failed to weigh up the father’s answers with eyes open to the fact that if the father was being cagey, which he undoubtedly was, that this was on legal advice as to the need to avoid incriminating himself. – See more at: http://familylawhub.co.uk/default.aspx?i=ce3473#sthash.Vihw7zMQ.dpuf
16. It is plain on that analysis of the judge’s judgment that much was put upon the father’s inability to say in terms to Dr Drennan and to the judge that he accepted that he did generate the stabbing incident and was responsible, directly or indirectly, for the arson. Ms Nartey, at paragraph 3(iii) of the grounds, says the judge erred in law in interpreting the father’s evidence in that way. She submits that the judge gave no warning to the father against self-incrimination and failed to weigh up the father’s answers with eyes open to the fact that if the father was being cagey, which he undoubtedly was, that this was on legal advice as to the need to avoid incriminating himself. – See more at: http://familylawhub.co.uk/default.aspx?i=ce3473#sthash.Vihw7zMQ.dpuf
16. It is plain on that analysis of the judge’s judgment that much was put upon the father’s inability to say in terms to Dr Drennan and to the judge that he accepted that he did generate the stabbing incident and was responsible, directly or indirectly, for the arson. Ms Nartey, at paragraph 3(iii) of the grounds, says the judge erred in law in interpreting the father’s evidence in that way. She submits that the judge gave no warning to the father against self-incrimination and failed to weigh up the father’s answers with eyes open to the fact that if the father was being cagey, which he undoubtedly was, that this was on legal advice as to the need to avoid incriminating himself. – See more at: http://familylawhub.co.uk/default.aspx?i=ce3473#sthash.Vihw7zMQ.dpuf

1 Comment

Posted in case law, private law and tagged , , , . Bookmark the permalink.

The Commital-ments

Posted on August 21, 2013 by suesspiciousminds

Two recent cases on committals – one resulting in a suspended sentence, one resulting in the commital being dismissed on some interesting techicalities.

The first :-  Re Roberts 2013

http://www.bailii.org/ew/cases/EWCC/Fam/2013/1.html

A warning shot across the bows, in relation to parents publishing material on the internet that would identify their child as being the subject of care proceedings.

In this case, Mr Roberts undertook some filming at Derby County Court, and also published on the internet documents which identified that his child was the subject of care proceedings, which is unlawful.  He had also given an undertaking not to do this sort of thing and breached that undertaking.

He was given a sentence of 6 weeks custody, suspended on the basis of him undertaking not to do this again.  (if he does it again, he will serve 6 weeks, plus whatever additional sentence is imposed for the later offence)

Of course, there is a lively and spirited debate at present as to whether parents should be able to do that, but unless and until the law is changed, doing this sort of thing presents a very serious risk to the parent of committal proceedings.  It is particularly worth noting the judicial comment here that breaches of this kind are bound to attract a prison term.

I’m not going to get into the merits of whether the law should change to allow Mr Roberts to do this, to publicise his case and speak out about whatever injustice he considers has been done to his family – the judgment is a cautionary tale that the law STILL applies to people even where they consider it to be unfair or foolish, and that there are serious risks attached to breaching the law.

I would add that as more and more litigants in person come into the family law system, the more vital it is to have clear and easy to follow rules about what can and cannot be said by a parent about the ongoing court case. The President’s direction of travel towards more openness is going to make it even more important that parents know exactly what the rules are.

It is such a short judgment, I can publish it in full. Note in particular, my underlined passages for emphasis.

RE MR PAUL ROBERTS

1.     On the 19 June 2013, Mr Paul Roberts appeared before His Honour Judge Orrell at the Derby Combined Court Centre; Mr Roberts was assisted by Mrs Jacque Courtnage, acting as a McKenzie friend.

2.     Mr Roberts admitted breaches of an order made by Mr Justice Hedley on the 14 June 2012 and breaches of an undertaking given by Mr Roberts on the 12 April 2013, namely:

3.     He allowed himself to be filmed in the Derby Combined Court Centre and in the film he identified W by name as a child who had been removed from her parents’ care and been subject of proceedings under the Children Act 1989.

4.     He published on the Internet images and letters from the local authority which identify W by name as a child who had been removed from her parents’ care and been made the subject of proceedings under the Children Act 1989.

5.     On the 1 May 2013, he allowed himself to be filmed in the Derby Combined Court Centre and in the film he identified J by name as a child who had been removed from his parents’ care and had been the subject of proceedings under the Children Act 1989.

6.     The above matters were breaches of the order made by Mr Justice Hedley.

7.     In breach of his undertaking, on the 1 May 2013, Mr Roberts disclosed information about the proceedings under the Children Act 1989 concerning J to a third party whilst allowing himself to be filmed including filming in the court building before the hearing in these proceedings on that day.

8.     In respect of the breaches, Mr Roberts was committed to 6 weeks custody to run concurrently in respect of each breach; the term of committal was suspended on condition that he complied with the terms of each of the following: [i] the order made by Mr Justice Hedley on the 14 June 2012, [ii] the order made by His Honour Judge Orrell on the 1 May 2013 within these proceedings and [iii] the undertaking given by Mr Roberts on the 12 April 2013.

9.     The sentencing remarks were as follows. The order and the undertaking were to protect a child in care. Any breach of that sort of undertaking is bound to attract a prison term. Breaches by talking to the sort of people you did was extremely reckless. On this occasion I will suspend the inevitable sentence in the hope you will not again risk going to prison.

His Honour Judge Orrell

And now, the second

In the Matter of an application by Her Majesty’s Solicitor General for the committal to prison of Jennifer Marie Jones for alleged contempt of court 2013

http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/application-matter-of-jennifer-jones-21082013.pdf

And this involved a mother who defied orders of the High Court that the children should be handed over to the father, who proposed to live with them in Spain.  She not only did not hand them over, she in effect went on the lam, and was finally found hiding out in a guesthouse in Gwent.

The two older children refused to go to their father, and even though the order transferring residence remained in force, they continued to live with their mother in Wales.

An application to commit the mother for contempt was brought, the trial Judge having asked the Attorney General to consider the case.

An issue arose as to whether there had in fact, been a breach of the order made by Hedley J, that underpinned the committal application. That order was as follows :-

“It is ordered that:

1 Jessica … Tomas … Eva … and David … shall be returned forthwith to the jurisdiction of the Kingdom of Spain pursuant to the provisions of the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

2 Paragraph 1 above shall be given effect as follows

(a) The children shall return to Spain accompanied by the father on a flight scheduled to depart from England and Wales no later than 24.00 hours on 12 October 2012 (00.00 hours on 13 October 2013); and

(b) The mother shall deliver up the children into the care of the father, or cause the children so to be delivered up, at Cardiff Railway Station at no later than 4pm on 12 October 2012”

Paragraph 1 does not place any obligation on the mother to do this, para 2 (a) relates only to the father, leaving only para 2 (b).  It is clear that the mother DID NOT deliver up the children.

 

18.  The Solicitor General does not base any allegation of contempt on a breach of paragraph 1 of Hedley J’s order. He was right to adopt that stance, for paragraph 1 was not an injunction, whether in form or in effect. First, paragraph 1 was not addressed to anyone in particular. It directed, in the abstract as it were, that something was to be done. But it did not order the mother, or anybody else for that matter, to do something: see the analysis in Re HM (Vulnerable Adult: Abduction) (No 2) [2010] EWHC 1579 (Fam), [2011] 1 FLR 97. Secondly, paragraph 1 did not specify any time for compliance, and that omission is fatal: Temporal v Temporal [1990] 2 FLR 98.

 

19        In relation to paragraph 2 of Hedley J’s order, the Solicitor General, as we have seen, puts his case on two different footings. First, he says that the mother was in breach in failing to deliver up the children by 4pm on 12 October 2012. Secondly, he says that she continued to breach the order by failing to deliver up the children after 4pm on 12 October 2012, which breach, he alleges, continued until 17 October 2012

That seems, on the face of it, to be a legitimate argument. The mother was aware that she had to deliver the children into the father’s care at Cardiff Railway station, no later than 4pm on 12 October 2012. And she didn’t do that. That looks and smells like a breach. But wait.

20    There is, in my judgment, simply no basis in law upon which the Solicitor General can found an allegation of contempt for anything done or omitted to be done by the mother at any time after 4pm on 12 October 2012. Paragraph 2(b) of the order was quite specific. It required the mother to do something by 4pm on 12 October 2012. It did not, as a matter of express language, require her to do anything at any time thereafter, nor did it spell out what was to be done if, for any reason, there had not been compliance by the specified time. In these circumstances there can be no question of any further breach, as alleged in the Solicitor General’s notice of application, by the mother’s failure to deliver up the children after 4pm on 12 October 2012 or, as alleged in the application, any continuing breach thereafter until 17 October 2012 when she and the children were found.

 

 

The President ruling therefore that mother could not have been in breach for not surrendering up the children AFTER 4pm on 12th October, as the order did not require her to do so.  So she was NOT in continued breach, and her actions in going on the run with the children wasn’t any part of the breach for which she could be committed. And she couldn’t be breaching the order by not delivering up the children BEFORE the deadline. That meant that the only possible breach was her not delivering the children to father’s care AT 4pm.

(So, she was possibly only in breach of the order for a minute, as by 4.01pm, the requirement on her had lapsed.)

22. The present case is a particularly striking example of the impossibility of reading in some implied term. What the order required the mother to do was to:

“deliver up the children into the care of the father … at Cardiff

Railway Station at no later than 4pm on 12 October 2012.”

Suppose that for some reason she failed to do that. What then did the order require her to do? Deliver the children to the father at Cardiff Railway Station or at some other (and if so what) place? And assuming it was to be at Cardiff Railway Station by what time and on what day? Or was she (to adopt the language of a subsequent proposed order) to return, or cause the return of, the children to the jurisdiction of the Kingdom of Spain by no later than a specified date and time? It is simply impossible to say. Speculation founded on uncertainty is no basis upon which anyone can be committed for contempt.

23.I do not want to be misunderstood. If someone has been found to be in breach of a mandatory order by failing to do the prescribed act by the specified time, then it is perfectly appropriate to talk of the contemnor as remaining in breach thereafter until such time as the breach has been remedied. But that pre-supposes that there has in fact been a breach and is relevant only to the question of whether, while he remains in breach, the contemnor should be allowed to purge his contempt. It does not justify the making of a (further) committal order on the basis of a further breach, because there has in such a case been no further breach. When a mandatory order is not complied with there is but a single breach: Kumari v Jalal [1997] 1 WLR 97. If in such circumstances it is desired to make a further committal order – for example if the sentence for the original breach has expired without compliance on the part of the contemnor – then it is necessary first to make another order specifying another date for compliance, followed, in the event of non-compliance, by an application for committal for breach not of the original but of the further order: see Re W (Abduction: Committal) [2011] EWCA Civ 1196, [2012] 2 FLR 133.

24.  It follows that the only question which properly arises on the present application is whether the mother was in breach of paragraph 2(b) of Hedley J’s order by reason of events down to 4pm on 12 October 2012.

At this point, one suspects that those bringing the committal application were beginning to quail. They probably considered that the mother was “bang to rights” but that sense of confidence was dissipating.

The next issue was then, whether the mother was actually flouting the order of Hedley J, or whether through forces beyond her control, she had been unable to comply with the order by getting to the train station at 4.00pm.

As luck would have it, before the mother had set off on the journey, the children had run away and the police were called and her departure was delayed, making it impossible for her to get to Cardiff train station by 4pm (or at worst, there being a reasonable doubt that it was impossible)

The Judge found therefore, that it was not proven to the criminal standard of proof that it had been physically possible for her to comply with the order to deliver up the children at 4pm, the mother had NOT breached that order, and that the order as drafted placed no obligation on her to do anything subsequent to 4pm (i.e she didn’t have to deliver the children to father’s care after that time), so the committal application had to fail.

It is therefore, a very important lesson in drafting terms in an order that might be enforced – one has to be clear what the mandatory obligation on the party is, and what the timescales for compliance are. Had the order been that mother must deliver the children to father’s care by 4pm on 12 October 2012 or in the event of that not being possible, that there was an obligation for her to deliver the children into his care at any time after and by the latest by 4pm on 19th October 2012, she might well have been in breach.

The events of 12 October 2012 – the facts

29. I turn at last to the central issue in the case: the close and careful scrutiny of the events of the crucial day, 12 October 2012. In fact, as I shall explain, the relevant inquiry focuses on an even narrower time-span: the period from 1.39pm to 2.56pm on the afternoon of 12 October 2012.

30. The unchallenged evidence of the mother, based on a Google printout, is that her home in Llanelli is 54.4 miles from Cardiff Railway Station, and that the journey by car along the M4 takes about 64 minutes. So, in order to get to Cardiff by 4pm they would have had to leave by 2.56pm at the latest. Also unchallenged was her evidence that she had arranged the loan of a friend’s 8-seater people carrier at 2.30pm to take herself and the four children to Cardiff and that, having herself packed the younger children’s luggage, at about 1pm she told the two older children to go upstairs to pack. At 1.37pm (the time is fixed by his mobile phone) Mr Williams received a telephone call from his daughter, who was driving past the house, to say that she could see Jessica on the flat roof outside her bedroom window and Thomas outside the house with his bag (apparently he had jumped down off the flat roof). Mr Williams went upstairs and pulled Jessica back into the house. She gave him the slip and ran out of the house and away with Thomas, Mr Williams in pursuit. He telephoned the police: the call was logged at 1.39pm. None of this is challenged by Ms Cumberland. So the crucial inquiry narrows down to the 77 minutes or so between 1.39pm and 2.56pm.

 

31. In relation to what happened during that period I am dependent in large part on the accounts given by the mother and Mr Williams. Both, as I have said, made witness statements and gave oral evidence. Their accounts can be summarised as follows: Mr Williams set off in pursuit, giving the police a running commentary on the phone: this is borne out by the police log. The children were found in the public library and collected by the police; the police log records them as being in the process of being taken back to the police station at 2.1pm. While they were being taken to the police station Mr Williams returned home and told the mother she was needed at the police station. Her friend Allyson Thomas took her there in her car. On her arrival – at about 2.30pm she thinks, perhaps a little earlier – she had to wait some time on her own. She then had a conversation with a police officer, who told her what the children had been saying. Only then was she able to see the children herself. Eventually they all returned home. A police log records at 4.59pm that they had left the police station “approx 1 hour ago” but the mother and Mr Williams think this is wrong and that they had in fact left somewhat earlier; the mother recalls her friend being anxious to get back in time to get her son to work by 4pm.

32. Having heard both of them giving evidence and being cross-examined, I accept this account as given by the mother and Mr Williams. They were, I think, being honest and doing their best to be accurate in what they said. Partly, this is a conclusion I arrive at having seen the way in which they gave their evidence. This was not some glib rehearsed account. The mother in particular was thoughtful, giving every appearance of trying to recall – to visualise – what had been happening that afternoon. Nor did she seek to put any kind of ‘spin’ on her account. If anything, quite the reverse. She did not seek to use the entry in the police log as showing that she had left the police station later than the time she recalled. And, significantly, she made no bones about the fact that as soon as she was reunited with the children in the police station she made it clear to them that they were not going back to Spain, nor about the fact that she repeated this to all the children at or soon after 4pm once she and the two older children had returned from the police station.

33. It is clear, both from her own account and from the police logs, that the mother told the police that she had to get the children to Cardiff by 4pm, and that she explained why. The police logs show that she was told it was a matter for her, and not the police. The mother’s account is that, whilst she was at the police station talking to the officer before being reunited with the children, he gave her an account of what they had told him and expressed his own opinion as being that Jessica was a danger to herself and others on the plane.

34. Apart from the police logs I have no account from the police of events at the police station. None of the officers gave evidence.

            Mr Hames submits that in these circumstances there is a clear answer to the critical question, Was it within her power to comply with the order, could she do it, was she able to do it? She could not. Through no fault of her own, and having made every effort to arrange a timely departure that would get them all to Cardiff by 4pm, the mother’s plans were frustrated: two of the children ran away, and whenever precisely it was that she left the police station it was on any footing well after 3pm, and probably nearer to 3.30pm – too late to get to Cardiff in time. As a fallback position, Mr Hames points out that it is for the Solicitor General to prove the case, and, moreover, to the criminal standard of proof. He submits that I simply cannot be sure that it was within the mother’s power to comply.

             

36. Ms Cumberland points to the mother’s frank admission of what she said to the children, to the fact that the mother, on her own account, made no effort to get the two younger children to Cardiff, and to the fact that, again on the mother’s own account, by shortly after 4pm she had embarked on a course of conduct that, far from trying to make alternative arrangements with the father, led to them all going on the run.

37. I can see the force of what Ms Cumberland says, and cannot help thinking that the mother has, quite fortuitously, been able to take advantage of two things that are unlikely to re-occur: one the serendipitous happenstance that the children ran away; the other that nothing which happened after 4pm is capable of being a contempt of court. So I have to come back to the critical question: Was it within the mother’s power to get the children back home from the police station in time for them all to leave for Cardiff no later than 2.56pm? Ms Cumberland says that it was: no-one had been arrested, everyone was free to leave the police station whenever they wished, and in any event there was nothing going on in the police station that would have prevented the two younger children being taken to Cardiff.

38. At the end of the day I am concerned with what is essentially a question of fact arising in most unusual circumstances. I have to put myself in the mother’s shoes as she is in the police station during the half hour or so between her arriving there at about 2.30pm and the time – 2.56pm – by which she has to leave for Cardiff. Two of her children have run away and been taken by the police to the police station. She has to wait, before receiving worrying information from the officer and only then being able to see her children. However the lawyer might subsequently analyse what had happened, the reality is that the mother was, metaphorically if not literally, in the hands of the police and having to work to their timetable. It is far from clear on all the evidence that the mother had been reunited with the children by 2.56pm – perhaps, but then perhaps not – and on that fact alone, in my judgment, the Solicitor General fails to prove his case.

 

Standing back from the detail, it is for the Solicitor General to prove that, as events worked themselves out on the afternoon of 12 October 2012, it was within the mother’s power to leave Llanelli by 2.56pm so that she could get the children to Cardiff Railway Station by 4pm. In my judgment he has failed to do so. The application must accordingly be dismissed

[Postscript – this is yet another one of those cases where a hugely important point was being litigated and the party did not obtain public funding. The mother was represented by pro bono counsel, who probably kept her out of prison, and hence at least some of her children still with her. The President spoke out afterwards about how unacceptable it is that such important issues are litigated relying on good will of lawyers acting for free.  http://www.lawgazette.co.uk/news/family-judge-criticises-reliance-free-representation  ]

7 Comments

Posted in case law, private law, transparency and tagged , , , , , , . Bookmark the permalink.

“Man of Straw and costs”

Posted on August 13, 2013 by suesspiciousminds

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

The Court of Appeal entirely agreed with the judicial approach

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

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

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

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

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

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

3 Comments

Posted in case law, contact, costs, private law and tagged , , , , , , , . Bookmark the permalink.

Terminating parental responsibility

Posted on April 15, 2013 by suesspiciousminds

The High Court decision of DW (A Minor) & Another v SG 2013 and the possible revival of applications to terminate a father’s parental responsibility (PR). Has the bar been set high enough?

 http://www.bailii.org/ew/cases/EWHC/Fam/2013/854.html

 A long time ago,  1995, an application to terminate a father’s parental responsibility was heard in the High Court, and that had been the only authority on the point since that time. Re P (Terminating Parental Responsibility) [1995] 1 FLR 1048

 The grounds were that during the course of care proceedings, it had emerged that the father had caused the serious injuries to the child, and the mother no longer wanted him to have parental responsibility, made an application and the Court granted it.

 [Now, of course, that course of events, though tragic, is not exceptional in care proceedings – and one might well argue that finding out that a father had not behaved well, had even been abusive, ought not to result in him being stripped of his parental responsibility – at least not unless the child was being adopted, and I know many of my readers think not even then.

 This is particularly so, since the Children Act 1989 provides a statutory mechanism for the mother to apply to remove the father’s PR, but NOT the reverse. The mother’s PR is sacrosanct, and is only removed by the making of an adoption order. It seemed terribly wrong that the father’s PR could be removed by an application, pace Re P,  with just some evidence that the father was an abuser]

 Most practitioners considered that to be a quirk, an anomaly, and a decision that wouldn’t actually stand up to scrutiny of the Human Rights Act if it were looked at again today.

Most practitioners (myself included) would have been wrong.

 The father in DW was not, one would have to say, a very nice person. He was a man who had been on trial for ten counts of sexual abuse and who only pleaded guilty the day before his children were due to give evidence. He received a four year custodial sentence.  The father, throughout the private law proceedings maintained that he was innocent of all charges and had only pleaded guilty to protect the children   (although finally advanced a position that he accepted that the convictions were made and he could not go behind them)

 So, not a man who would be on the shortlist for any father of the year award, and in writing this piece, I am clearly not defending anything that he has done, or saying that he should play any part whatsoever in the children’s lives.  I am merely doubtful that removing his parental responsibility  (no matter how diminished his exercise of it would rightfully be in practice) is fair.  If you asked me should he have done twenty years in prison rather than four, I’d be right there with you signing a petition to that effect.

 The Judge looked obviously at the statutory provisions (underlining mine) :-

 

Section 4 (1) Where a child’s father and mother were not married to each other at the time of his birth, the father shall acquire parental responsibility for the child if

(a) he becomes registered as the child’s father under any of the enactments specified in subsection (1A);

(b) he and the child’s mother make an agreement (a ‘parental responsibility agreement’) providing for him to have parental responsibility for the child or

(c) the court, on his application, orders that he shall have parental responsibility for the child.

(1A) the enactments referred to in subsection (1)(a) are

(a) paragraphs (a) (b) and (c) of section 10 (1) and of section 10A (1) of the Births and Deaths Registration Act 1953 ….

…

(2A) A person who has acquired parental responsibility under subsection (1) shall cease to have that responsibility only if the court so orders.

 

(3) The court may make an order under subsection (2A) on the application

(a) of any person who has parental responsibility for the child… “

 

Raising the interesting question that a mother can apply for a father’s PR to be withdrawn, and oddly the father can apply for the father’s PR to be withdrawn, but neither can apply for the mother’s PR to be withdrawn.

 The Court also looked at the existing authority of Re P

 

16. “I have to say, notwithstanding the desirability of fostering good relations between parents and children in the interests of children, I find it difficult to imagine why a court should make a parental responsibility order if none already existed in this case. I think the continuation of a parental responsibility agreement in favour of the father in this case has considerable potential ramifications for future adversity to this child. I believe it would be a message to others that he has not forfeited responsibility, which to my mind it would be reasonable to regard him as having done. I believe that it might be deeply undermining to the mother and her confidence in the stability of the world surrounding (the child).”

17. Later, he added (on page 1054):

“I believe that there is no element of the band of responsibilities that make up parental responsibility which this father could in present or in foreseeable circumstances exercise in a way which would be beneficial for the child. I therefore conclude that it is appropriate to make an order as sought under section 4…bringing to an end the parental responsibility agreement entered into….”

 

For my part, I think there is a conflation there of two issues. If the father in this case DID not have PR, and one were considering his application for PR, I can see compelling reasons not to give it to him. But what the Court is doing is removing PR from a person who already has it  (knowing that the only other mechanism for this is adoption, the most draconian order a family court can make) . 

I think that removing PR from a person who has it is a big deal, and requires something much more compelling – if indeed section 4 as drafted is compatible with human rights (given that it is framed entirely on gender terms, I just don’t think it is). And moreover, that although the fathers in these two cases appear to be pretty unsympathetic characters, the way the decisions are framed mean that fathers who have done less bad things could lose their PR.

 I shall be fair – the alternative way of framing this argument is :-

 

  1. Parliament put in place a mechanism that allowed a mother to apply to terminate the PR of a father , and a mechanism that allowed the Court to terminate that
  2. If you are going to have that power, there must be circumstances in which it can be used
  3. The father’s conduct in both of these cases was reprehensible, and if you aren’t going to allow the application in these cases, what sort of case are you going to allow it? 
  4. If it is only a theoretical power, what is the point of it?  And as far as we can see, it is a power that has only been used on 3 occasions in nearly twenty five years, so it is hardly a landslide.

 [The problem with playing devil’s advocate, is that the devil is persuasive. I shan’t do that again in a hurry]

 The Court in DW clearly considered the case very carefully (and I shall come onto some of the evidence in a moment) and also took into account the human rights issues, rejecting the father’s claims that section 4 of the Act was discriminatory if it penalised ‘bad conduct’ for fathers but not mothers.

 I am troubled by this, since I think that the facts in these two cases, and the decisions as reported, do open the door to a lot of fathers having applications for their PR to be terminated. 

 I don’t think that the bar here was set very high, bearing in mind the importance of the issue at stake. And not least because if the roles were reversed, a mother would be at no risk of losing her PR.

Looking at the bar, considering what’s at stake, it seems to be more fit for limbo dancing than pole vaulting.

 [I did look at illustrating this, and my quick trawl of google images located a David Hasselhoff  Limbo-Dancing album.  And he has his shirt off on the front cover…  I have resisted this, as likely to place me  in excess of the EU Regulations on Cheese-Content for Blogs]

It is however, a judgment that was careful to take into account various factors and placed the welfare of the child at the heart of the case   (and once the Court rejected the argument that section 4 was incompatible with article 8, was the only rational conclusion)

 

  1. In my judgement, the magnetic factors in this case are D’s emotional needs, the harm he has suffered, and the risk of future harm. As a result of the turbulence and disruption endured by this family during the mother’s relationship with the father, and the period leading up to the father’s criminal trial, all members of the family, including A, C, the mother and D have suffered harm of varying sorts and to a varying degree. So far as D is concerned, whether or not he witnessed the father perpetrating any abusive acts on A, I accept that he has suffered emotional harm as a result of the harm inflicted by the father on other members of his family. I accept that, because of his parentage, D’s position in the family is difficult and that there is a risk of his suffering further harm and stigma if he continues to be perceived and treated in any way as the son of this man who perpetrated acts of sexual abuse on his older siblings.
  1. In addition, I take into account D’s expressed wish to have no involvement with his father. As he is only aged eight and a half, the weight to be attached to those wishes is limited. I accept that to a considerable extent his express wishes have been influenced by his mother and siblings. Nevertheless, I find that they are rooted in the reality of his life.
  1. I also take into account the capacity of the mother to meet D’s needs. I find that were the father to retain parental responsibility, she would be placed under very great strain, given the probability as I find that the father would subsequently apply for contact, and that he would seek to be further involved in D’s life. Equally, given all the harm that the father has inflicted on the family, I accept that the mother would find it well-nigh impossible to send a regular report to him concerning D’s progress. I find that imposing such an obligation on her would impinge on D’s emotional security.
  1. All these factors point towards an order terminating the father’s parental responsibility and dismissing his application for a specific issues order. On the other side of the scales, I take into account the fact that, as part of his background, D is the biological child of the father, and that as an aspect of his emotional needs he, like every child, should grow up with some understanding of his origins and, whenever possible, a relationship with each biological parent. But in certain circumstances those needs must give way to more important considerations, in particular, the need for emotional security. I conclude that D’s emotional security would be imperilled were the father to continue to have any further involvement in his life. Equally, whilst acknowledging that as an aspect on their respective Article 8 rights, both D and his father have a family life together, that aspect is in this case outweighed by D’s overriding need, as part of his Article 8 rights, to security within his family.
  1. Miss Townshend sought to persuade me that Re Pwas distinguishable on the facts of this case. On the contrary, and notwithstanding the factual differences between the two cases, I find that it provides invaluable guidance. Following Singer J’s example, I look to see to what extent the well established factors for making parental responsibility orders would be satisfied in this case. I accept that, although the father showed a degree of commitment to D when living in the household, that was wholly undermined by his actions in perpetrating serious sexual abuse on A and C, and this has been compounded by his subsequent denials up to the third day of the trial and renewed assertions that he is not guilty. So far as attachment is concerned, whilst there was undoubtedly some degree of attachment between D and his father when he was a baby, there is no attachment now as he has not had any contact for several years. As indicated above, I find there is force in the mother’s concerns that the father is motivated by wishing to become more involved in D’s life, to the detriment of the family including D. As in Re P, I find that, if the father did not have parental responsibility, it is inconceivable it would now be granted to him, and that this is a factor I should take into account when considering this application to terminate his parental responsibility. Furthermore, like Singer J in Re P, I find that in this case there is no element of the bundle of responsibilities that make parental responsibility which this father could in present or foreseeable circumstances exercise in a way which would be beneficial for D.

 

The evidence in this case was interesting, since father instructed a clinical psychologist, Mr Shuttleworth, to conduct an assessment.

 I am going to simply quote extracts from the judgment and let them speak for themselves  – I do not know Mr Shuttleworth (and I suspect from reading this judgment, I am unlikely to get to know him).  It may be that this judgment does him a grave disservice.

 

  1. In his report, Mr Shuttleworth was critical of Dr Obuaya’s psychiatric assessment carried out in the course of the criminal proceedings, in particular, his failure to identify what Mr Shuttleworth regarded as the clear symptoms of ADHD. Mr Shuttleworth went so far as to question whether Dr Obuaya had been right in concluding that the father had been fit to plead.
  1. On the issue of sexual risk, as stated above, the father maintained throughout the assessment that he was innocent of the offences to which he had pleaded guilty. Mr Shuttleworth noted that in prison he had been assessed as ‘presenting a low risk of recidivism’. In his assessment, Mr Shuttleworth stated that ‘there is no evidence that he has any sexual deviations’ and concluded (contrary to the observations of the sentencing judge) that there had been no escalation of his sexual offending. Mr Shuttleworth recorded that the father denied having been sexually abused by any member of his family, contrary to statements that appeared in the father’s medical records.
  1. Mr Shuttleworth concluded:

“I do not believe that he would be a risk to a child from a sexual point of view. There may be more doubts if he was looking after a girl because of the convictions, however there is no indication that he ever had any particular interest in a male….While I do not believe there is any evidence that he is a risk, his recent behaviour, particularly in prison, indicates that he is fully willing to enter into any programme which might involve him proving his parental skills. He will obviously stop short of agreeing to claim responsibility for any alleged sexual crime in order to enter into any of those programmes.”

He added:

“My overall impression is that he has been amazingly tolerant and accepting of his ex-partner’s fears in not demanding more contact, although I would presume that he would like to have this sometime in the future when his reputation has hopefully been rehabilitated.”

  1. In oral evidence, Mr Shuttleworth drew attention to the father’s claim that his criminal lawyers had advised him to plead guilty to avoid a longer sentence. Mr Shuttleworth was not convinced that the father was a sexual offender and expressed the view that there were grounds to challenge the reliability of the conviction based on his doubts about the father’s fitness to plead, the failure to diagnose ADHD, and ‘the way the trial was conducted’. Cross-examined on behalf of the mother, Mr Shuttleworth stated that, if the father had been abused by his brother, as stated in the father’s own medical records, and if he had been involved in sexual activity with A and C, he would pose a risk to D that Mr Shuttleworth described as ‘moderate’, but he added ‘other people in prison who have more experience of these things assessed this risk as low’. When invited to consider specifically the risk to D, Mr Shuttleworth said:

“Even if he’s had sex with children, I’ve come across a lot of paedophiles who do not abuse their own children.”

Mr Shuttleworth added that ‘there’s an assumption that people who are paedophiles are unable to control their impulses’. He said that he found the father to be a very warm and caring man who cares very much for his children.

 And the Judge’s conclusions in relation to this evidence

 

50. In light of my findings about those matters I turn to consider the evidence of Mr Shuttleworth. I listened to that evidence with increasing concern. I regret to say that I have found his opinions naïve, complacent, unreliable and at times misleading. His reluctance to accept the convictions as the factual basis for his assessment was a dereliction of his duty as an expert witness. His statement in his report that there was no evidence of any “deviations” was simply untenable given the existence of the convictions for ten offences of sexual abuse. His various statements about paedophiles quoted above runs contrary to all the understanding about the dangerous and deceitful behaviour of paedophiles which this court has come across many times over the years. His assessment of risk was, in my view, worthless, and I reject it.

2 Comments

Posted in case law, private law and tagged , , , , , , , . Bookmark the permalink.

Getting the best out of your solicitor

Posted on February 26, 2013 by suesspiciousminds

Some general advice and suggestions for making good use of a solicitor in a case involving children.

For most people, the only time they see a solicitor is when they are buying a house, or when something has gone badly wrong for them. So it is not surprising that if you have to go and see a solicitor about your child, you don’t know what to expect.

If you don’t see them in real life, the other place is TV and in films.

The only solicitors we see on television tend to be on crime shows where their role is limited to either (a) being quiet and nodding  or (b) saying  “Stephen, you don’t have to answer that Stephen!” just as Stephen confesses all, two minutes before the final credits.  Or those personal injury lawyers, walking along a street in crisp white blouses looking all stern and ready to kick someone’s ass on your behalf if you fell off a stepladder.

They are either nodding dogs, or rottweilers with lipgloss…

So, when you go to see a family lawyer, you will find that they won’t be like either of those things. They aren’t quiet nodders, and they aren’t rottweilers with lipgloss (well, not always)

[Three quick definitions of phrases we use as solicitors, to put into plain english  :- a solicitor is someone who works in law, who has a degree and has passed specialised training to become a solicitor, and a lawyer is anyone who works in law. All solicitors are lawyers, but not all lawyers are solicitors.   And then ‘instructions’ means the things that you tell the lawyer to do, or what your position is on any question that they ask you about.]

There are some things that you can really do to help yourself for that first appointment (especially important if you are paying for it yourself, since making things more efficient for them is cheaper for you)

  1. When you make the appointment, make it clear what it is about. Is it about a mother and father disagreeing about arrangements for a child, or is it about Social Services and your children?  If the reason for your appointment is that you’ve been sent some papers telling you that you have to be in Court on Thursday, make sure you tell them that, so that the person you are seeing knows that they will be going to Court with you on Thursday.
  1. Bring with you the stuff they tell you to bring. That will usually be, something with your photo on it, and something with your address on it (so they know that you are who you say you are), some recent payslips or benefit book (so that they can work out whether you qualify for free legal advice and can take copies) and any court papers you have been sent.

(I know that the temptation when you get court papers is to tear them up, or write “LIES”   all over the margins, but that really is going to make it harder for your lawyer, as they will be the copies they have to take to court and use)

  1. Have in your mind, or even written down, a short introduction – a page will do.  Who are you, who are the important other people in the case. Who are the children, how old are they, where do they live. If it is about you splitting up with someone, when did you split up?   And most importantly, what is the main reason why you have come to see the solicitor.   “Things were all going okay, I was seeing the children every weekend, until I got this new girlfriend, then my ex stopped all contact, that was four weeks ago”   or  “Social Services say that my son has got a broken arm and it wasn’t an accident and now they want to take it to Court”     that sort of thing.
  1. Be clear in your mind, and say to them, what it is that you really want to achieve.   “I want to get my contact started up again”   “I want my son to stay with me and not go into care”
  1. You may also want to have in your mind a Plan B – if it is not possible to get what you really want, what is the next best thing?  Having a Plan B doesn’t mean that your solicitor will give up on your main thing and go straight for that, it just means that it is better to be prepared in case your main aim is not something you can achieve straight away.
  1. Everything you say to your lawyer is secret. They won’t tell anyone else, so you can tell them the truth. The one qualification to that is that if you tell them that you have lied, and ask them to keep on with that lie for you, they won’t be able to do that. So you would have to then decide whether to get new solicitors, or whether to change your instructions to them so that you aren’t asking them to lie to the Court.

[You might be a bit surprised about that – I know that for most people, lawyers and lies go together like wasps and strawberry jam, but actually, there are really strict rules about it. A lawyer can’t ever lie to the Court or mislead the Court.  They can legitimately do their best to put you in the best possible light, and to take any criticisms that other people are making about you and defend you against them, but they can’t say that you did X or Y, or didn’t do X or Y, if you have told them different.   The rule is that they can make you look good, or less bad, but they can’t lie for you]

  1. Your lawyer is going to have the best chance of being able to achieve what you want if there are no surprises in store for them. It is no fun preparing a case for Mother Theresa, only to get to Court and find that the other side have lots of evidence that you drink like a fish and were in prison for punching policemen in the face.  Best to know that sort of thing up front, so the lawyer can deal with it and plan for it.
  1. Give the lawyer the best way to get in touch with you – whether that is mobile, email, or by letter. If there are specific problems (you can send me a text, but I never check my voicemail) then let them know.  If you change your mobile number or your address, let them know.
  1. If during the meeting, or afterwards, you feel like you don’t understand something, just ask.  You have come into a world that is strange, that has weird language, weird customs and everything is new to you. It really is fine to say “Hang on a second, I’m not sure I get what a CAFCASS officer is, can you explain it again?”
  1.  At the end of the meeting, make sure you know what is going to happen next. Are they asking for you to do anything? If so, what is it, and when should you do it? Or are they doing something for you, in which case what is it, and when would they need to talk to you or see you again?

Going to Court

  1. Make sure you know where the Court is, and what time you’ve got to be there. You usually want to be in Court forty minutes or so before the hearing is due to start.  Be aware that like a doctors surgery, everyone is told to be there at ten or two, so you might not be the first case to be heard and there might be waiting around.
  1. Get to Court on time.  Take the papers with you, and when you book in, say which case you are there about and who your solicitor is.  If you can’t make it or you are late, ring your lawyer to let them know.  They may have booked someone else – a barrister to come to court and speak to the court on your behalf. They will know the background to your case and they will probably have some additional things they want to talk to you about.
  1. Probably not a good idea to talk to anyone else who is on the case or sit near them, just find a spot on your own until your lawyer finds you.
  1. As tempting as it is to go up to the social worker / your ex and shout “Happy now are you?”  or similar stuff,  you should really avoid it.
  1. When you go into Court, sit on the row directly behind your lawyer. It is Court manners to all stand when the Judge/Magistrates come in, and go out.  (Usually there will be someone official who says “All stand”).  Even if you are a rebel-without-a-cause  “nobody tells me what to do” sort of person, just stand up, it really isn’t worth causing a fuss over.
  1. Ideally in the Court hearing, unless you are giving evidence, the only person you should speak to is your lawyer, which you will do very quietly. Don’t interrupt or shout out when other people are talking, and don’t sit there whilst other people are talking saying “well, that’s lies” and so on. If someone does say something that is wrong, or a lie, or a mistake, gently get your lawyers attention and let them know what you have to say about this.
  2.  Storming out of the Court room, slamming the door never looks good. If you need to leave the room, just quietly say to your lawyer that you have to go outside for a bit, and why. And when you come back in, don’t make a big fuss, just come and sit down behind your lawyer.
  3. After the hearing, make sure you understand what happens next, what anyone expects you to do, and if the case is coming back to court on another day, that you know when that day is.

Giving evidence

  1. If you think you are going to have to give evidence, ask your lawyer beforehand how that works – where you stand, how to speak and so on. Your lawyer can’t tell you how to answer certain questions (that’s called ‘coaching’ and is banned) but they can give you tips on how to give your evidence and how to keep calm if you find yourself getting confused or upset or angry.
  1. You will give evidence from the witness box. The first thing you will have to do is give a promise to tell the truth, and that promise is written down on a sheet of card for you to read out. You can swear on the bible, or other holy book, or you can ‘affirm’  which means reading the promise out without having your hand on a holy book, if you aren’t religious.
  1.  The top tips in giving evidence are that everyone in the room is trying to write down what you say, so speak a bit louder and a bit slower than you normally would,  don’t take anything personally, and it is not a quiz show where you have to answer immediately so if you want to take a few seconds to think about your answer that is fine.

Hopefully, and this is the idea of the whole thing, you will find a lawyer who listens to what you have to say, gives you good advice and who you feel you can trust and who is doing the best job they can for you.

If you don’t, you need to try to sort this out. Not by simply not communicating with them, or by ringing them up and shouting, but by saying “The other day when X happened, I don’t think you really did what I wanted. Can you explain why that happened?”

If you can’t resolve it by talking through your problem, then you may want to get another lawyer, maybe someone at the same firm, maybe a different one, and you should be able to get guidance on how that works.

But if you don’t talk to your lawyer, especially about any big changes in your life or your case, or about your worries or doubts, they won’t be able to help you, and that is what they are there for.

6 Comments

Posted in contact, fact finding, private law, Uncategorized and tagged , , , , , , , , , , , , , , , , , , , , , , , , , , , , . Bookmark the permalink.

“Don’t ever invite a Judge into your house, you silly boy, it renders you powerless”

Posted on February 22, 2013 by suesspiciousminds

 A peculiar little case, considered by the High Court, and not just a cheap opportunity to quote from The Lost Boys, honest. [But come on, when would Suesspicious Minds ever pass up an opportunity to reference the Lost Boys?  “Burn rubber, does not mean warp speed!”]

Re AMV and MV 2012

http://www.familylawweek.co.uk/site.aspx?i=ed111643

It isn’t an important case, save for those involved, nor does it say anything vital about the law, but it is one of those interesting ones that I collect and write about where the mind boggles at how cases sometimes end up being conducted.

The Judgment is very short. Here is the nub of it.

A private law dispute where the mother and the children were living sometimes at her own home and sometimes with the maternal grandparents. The father alleged that the mother was living full-time with the grandparents, in an unsuitable property and not living at her own address at all.

The District Judge decided that the best way to assess that was to go out and see for herself.

So the mother was asked to agree to that site visit, there and then, and given 15 minutes to decide.  [I like to imagine that the Judge was also loudly humming the Countdown theme tune, but this did not actually happen]

Obviously, saying no might have given the impression that there was something to hide, so with some confusion, she agreed.

It hadn’t been possible to contact the grandparents to forewarn them / ask them, so the Judge, accompanied by the mother, father, counsel and the CAFCASS officer set out on the journey.

All parties duly arrived at the mother’s house, were permitted entry and apparently combed the premises, opening doors, looking in cupboards and fridges, even looking in wastepaper baskets. I was told that the District Judge had specifically looked into a dustbin and, as a result, made an express finding, arising from this as to the likely occupancy of the house.

6 On completion of this outing, the parties (still in the two separate cars) drove to the maternal grandparents’ property. On arrival they were given admittance. The maternal grandparents were to an extent taken by surprise. They did not have independent legal advice. The process of investigation, as already described, then took place in their home, with doors being opened, the contents of drawers being investigated and the like.

7 The parties returned to court. The entire outing took about one and a half hours. The District Judge made findings in reliance upon what had been seen – indeed, a great deal of cross-examination of the CAFCASS officer took place on the basis of counsel’s perception of the state of the two homes.

It is not going to take a genius to work out that the Court having made decisions based on these site visits, the mother was going to appeal those decisions, and that she was going to succeed in that appeal.

To my mind, this entire procedure was wholly unacceptable. In the first place, it was a suggestion which came within or shortly after the opening of the case and did not permit time for proper consideration of the implications. In reality it gave the mother and her adviser little effective choice but to agree for fear that a negative response would draw an adverse inference from the court. It was, in effect, litigation by ambush.

9 Although I have not been addressed in detail by either counsel, it would also seem to me it was, prima facie, a breach of the mother’s Article 6 rights to a fair trial. It is not the role of a judge in such a situation to play detective and enter a person’s home. 10. More importantly this Judge entered the home of a third party in order to elicit evidence. Prima facie, that was a breach of the maternal grandparents’ Article 8 rights.

To my mind, a judge’s job is to consider the facts presented, weigh up that evidence after cross-examination, make findings and a determination. If the methodology adopted by this District Judge was correct, it would lead inevitably to breaches under the ECHR. A Judge cannot seek to determine who is telling the truth by a surprise or unannounced visit in relation to disputed facts. That is not an appropriate way to litigate.

Moreover, the method of approaching third parties and seeking entrance into their home in those circumstances as I have stated left them with effectively no choice. I doubt that they felt that they had any alternative but to open their front door and make the Judge, counsel, their daughter and their former son-in-law welcome in their flat.

The District Judge found their home was cramped, dirty and untidy. Hardly a matter which was appropriate in all the circumstances.

10 I consider that it is inappropriate for any District Judge to seek to deal with a case in this manner. Especially as the site visit came at the Courts suggestion without any or any sufficient time for mature reflection let alone legal advice.

If there are real concerns that children are not being cared for properly (and that was not an issue in this case) it is a matter that can be dealt with by social services who are entitled to, and do make, regular unannounced visits.

I deprecate the method used by the District Judge and would urge that nothing similar occurs in the future.

I suppose the process of the District Judge effectively making an unannounced visit and looking in dustbins, and the parents counsel cross-examining the CAFCASS officer about a home visit to which not only they, but also the Judge had also been present (and thus technically witnesses about) was slightly more scientific and forensic than the Judge starting the judgment with “Ip dip sky blue, it is not you” , but not all that much more.

Please, judges and counsel of the land, keep making such extraordinary and peculiar decisions, it brightens up my day.

[The usual tangent – it seems that the lore that a vampire must be invited into your home comes from Bram Stoker, in “Dracula” “He may not enter anywhere at the first, Unless there be some of the household who bid him to come; though afterwards he can come as he please.” – where Van Helsing is recounting the powers and limitations of the vampire, and wasn’t around as a myth before then]

we trashed the one who looked like twisted sister - totally annihilated his nightstalking ass

Comments Off on “Don’t ever invite a Judge into your house, you silly boy, it renders you powerless”

Posted in case law, private law and tagged , , , , , , . Bookmark the permalink.
← Older Posts
Newer Posts →