Category Archives: private law

“Biological parent versus legal parents – OR Judge Fudge is far too busy being delicious”

Posted on February 1, 2013 by suesspiciousminds

A discussion of the High Court decision in Re S v D &E 2013, in which the High Court determined that a man who had donated sperm which led to the birth of a child could make an application under the Children Act 1989, although leave would be required. The case involved two separate families where the issues were similar (although of course the precise facts were different, and were bundled up together) – which becomes very important later on.

As promised, LO !

http://www.bailii.org/ew/cases/EWHC/Fam/2013/134.html

The issue really arises as a result of the provisions within the Human Fertilisation and Embryology Act 2008, to the effect that in this setting, where a man provides gametes in order to bring about a pregnancy, but that the biological mother of the child is in a civil partnership, the two women will be legal parents of the child and the donor will not be a legal parent.

The provisions of the 2008 Act relevant to these applications are ss.42(1), 45(1) and 48(1), (2) and (5). S.42(1) provides

“If at the time of the placing in her of the embryo or the sperm and eggs or of her artificial insemination, W was a party to a civil partnership, then … the other party to the civil partnership is to be treated as a parent of the child unless it is shown that she did not consent to the placing in W of the embryo or the sperm and eggs or to her artificial insemination (as the case may be).”

S.45(1) provides, in so far as relevant to this application:

“Where a woman is treated by virtue of section 42 … as a parent of the child, no man is to be treated as the father of the child.”

S.48, so far as relevant to this case, provides:

“(1) Where by virtue of section … 42 … a person is to be treated as the … parent of a child, that person is to be treated in law as the … parent … of the child for all purposes.

(2) Where, by virtue of section … 45 … a person is not to be treated as a parent of the child, that person is to be treated in law as not being a parent of the child for any purpose.

….

(5) Where any of subsections (1) to (4) has effect, references to any relationship between two people in any enactment, deed or other instrument or document (whenever passed or made) are to be read accordingly.”

Therefore in this case, the donor is “not to be treated as the father of the child” and “is to be treated in law as not being a parent of the child for any purpose”

That prevents the donor from the ability to make an application for contact or residence as of right, as he is not a parent.

The more difficult question was whether the donor had the right to make an application to Court under s10(9) of the Children Act 1989 for LEAVE to make an application, or whether the provisions of the Human Fertilisation and Embryology Act 2008 were in effect a bar to such leave being given, as he is “not to be treated in law as being a parent of the child for any purpose”

The parents argument was the HFAE 2008 meant that the donor was not a parent of the child for any purpose, and that meant there was no connection to the child and so any application under s10(9) was doomed to failure, connection to the child being a key component.

It is a central feature of the argument advanced by Miss Russell on behalf of X and Y, and adopted and developed by Miss Fottrell on behalf of D and E, that the policy underpinning the reforms implemented in the 2008 Act is a material consideration for this court in determining the applications for leave under s.10(9).

It is manifestly clear that, by passing the 2008 Act, Parliament changed the law on donation to recognise lesbian parents as joint legal parents. Those provisions not only confer parenthood but also expressly eliminate the legal status of the man who is the biological father in such circumstances. Miss Russell submits that the provision that no man should be treated as the father ‘for any purpose’ affects the interpretation of every other legal enactment and private document and should be regarded as a fundamental and overriding provision. Miss Russell submits that Parliament could not have been more categorical about its intent to shelter recipient parents from any possible parental claim from a “donor”.

The respondents contend that, by providing that a man in the position of S and T is ‘not to be treated as the father for any purpose’, Parliament intended to protect families from precisely the type of conduct being demonstrated by the applicants in this case, which Miss Russell characterises as an “invasion of privacy and infringement of parental responsibility”. She argues that T’s application amounts to seeking a paternal role on the presumption that Z will benefit from the building of such a relationship with his biological father in addition to the relationship he has with his two existing legal parents. Miss Russell submits that the amendments to the law introduced by the 2008 Act represent a significant shift of policy away from the presumption that a child’s welfare is enhanced by the involvement of a father, towards an acknowledgment that alternative family forms without fathers are sufficient to meet a child’s needs.

Miss Russell submits that the effect of requiring “donors” in these circumstances to apply for leave is significant. Prior to the implementation of the 2008 Act, an applicant in the position of S and T was entitled to apply for contact as of right. Previous cases have been heard under a different legal framework in which the applicant man was the legal father and the welfare of the child was, from the outset, the court’s paramount consideration. In contrast, under the present application, the applicants are not legally the fathers of the children and welfare is not the paramount consideration of the court and the court is considering the section 10(9) criteria in the context of, and in conjunction with, the provisions of, and policy underpinning, the 2008 Act. Granting an applicant in these circumstances leave to apply for orders under s.8 would, she argues, seriously undermine that policy.

The donor’s argument was that s10(9) applied and he could make an application for leave, and that it would be for the Court to determine whether his application for leave should be granted, applying all of the usual tests.

In response to these submissions, Miss King deployed an extensive range of arguments, but her central submission can be simply summarised. She accepts that the effect of the reforms implemented by ss 45(1) and 48(2) of the 2008 Act was to remove the status of legal parent from a man who provides sperm for the artificial insemination of a woman in a civil partnership, but submits that this does not eradicate his status as a genetic parent who may, depending on the facts and whether or not he satisfies the criteria under s.10(9), be allowed by the court to apply for an order under s.8 of the Children Act in order to play a role in the life of the child. Although parental responsibility is vested exclusively in the mothers of the children, Miss King submits, relying on dicta of McFarlane LJ in Re W (Children) [2012] EWCA Civ 999, that with parental responsibility comes both authority and duty and argues that, as the legal parents to Z, part of the role assumed by X and Y involves making responsible decisions which meet the best interests of their child including permitting contact with his biological father. If they are unable to agree to do so, then, submits Miss King, the court must intervene on behalf of the child

Miss King submits that social and psychological relationships amounting to parenthood can and often do co-exist with legal parenthood. In some circumstances, a legal parent may not have a day to day relationship with a child whereas a person with a significant social or psychological relationship may be a stable and constant presence whilst lacking the status of a legal parent. Miss King submits that to contend for the notion that a biological father has an inherently higher test to meet than would others who are not legal parents to the subject child is to ignore the fact that leave to apply is only ever required when the applicant is not the legal parent. No person is absolutely excluded from seeking redress, although, save in certain defined circumstances, an application for redress cannot be made without the court’s leave. Miss King reminds me that this is the position faced by biological fathers without parental responsibility in other circumstances(see Re H (illegitimate Children: Father: Parental Rights) (No 2) [1991] 1 FLR 214), and also by step-parents (Re H (Shared Residence: Parental responsibility)[1995] 2 FLR 883 and Re A (Joint residence/Parental responsibility)[2008] 2 FLR 1593) and same-sex partners who have no biological relationship with the subject child but are playing the role of the parent (G v F (Contact and Shared Residence: Application for Leave [1998] 2 FLR 799). Miss King submits that biological fathers who are deprived of legal parenthood by the 2008 Act should be treated no differently.

Miss King submits that, had Parliament intended that a person in the position of the respondents in this case should be entirely stripped of legal remedies, it would have expressly provided that a progenitor in these circumstances would be disqualified even from seeking the court’s leave. In the absence of such an express provision, the policy considerations advanced on behalf of the respondents should not be used to trump or outweigh the statutory criteria for granting leave under s.10(9).

In developing Miss King’s arguments on this point, Miss Reardon submits that the terms of s.42 of the 2008 Act do not limit a child’s parentage to the two mothers in anything but the strictest legal sense. Therefore, she argues, the Act cannot operate as a blanket ban on any application by a biological father. The fact that the terms of the 2008 Act require that a man in a position of S and T ‘is to be treated in law as not being a parent of the child for any purpose’ is a very different thing from excluding him from making an application for leave to apply for an order under s. 8 of the Children Act. In fact, she submits, biological parents who are not legal parents continue to be treated as the parents of their children for a number of purposes, for example in order to obtain information about a genetically-related medical condition, or to provide the child with an understanding of his biological heritage and identity.

The Court took pains to point out a number of times in the judgment that in dealing with cases where there were two legal parents and two biological ones and not necessarily a complete overlap between those two sets of “parents” most of the decisions were likely to turn on the facts specific to that case.

This was also the case advanced by the donors (there being two cases of similar type ‘bundled up’ and heard together)

Ultimately, the cases advanced on behalf of the applicants focus on the facts. Central to the case advanced on behalf of the applicants is the argument that each case is fact specific. They submit that the policy considerations underpinning the 2008 Act do not entitle or oblige the court to refuse an application for leave in every case. In some cases, it will be appropriate to grant a genetic or psychological parent leave to apply for contact, in others not. In support of this submission, Miss King relies on the decision of the Court of Appeal in A v B and C (Lesbian Co-Parents: Role of Father) [2012] EWCA Civ 285 [2012] 2 FLR 607. In that case, both Thorpe LJ and Black LJ (at paragraphs 23 and 39 respectively) stressed that decisions in disputes between two female parents and a male parent are “so fact specific’. As a result, Black LJ concluded that ‘this is an area of law in which generalise guidance is not possible’. Miss King acknowledges that A v B and C was a case in which the biological father was entitled to apply for contact as of right and the court was thus applying the paramountcy principle. She submits, however, that the observations of the Court of Appeal support the argument that the court should adopt a fact-specific approach to the application for leave in this case, rather than attaching any significant weight to the policy considerations identified by the respondents.

And that it would therefore be a consideration by the Court of the facts in the particular case as to whether a donor should be granted leave under s10(9) rather than interpreting that the policy underpinning the provisions of the HFEA 2008 meant that as a matter of public policy such a s10(9) application for leave should be refused.

The Court, as you will see from the conclusion of the judgment, was in agreement with the applicant, that it was a case specific decision on the facts as to whether s10(9) leave should be granted, and went on to do so.

112. Discussion

I accept the submission put forward on behalf of the respondents to these applications that the reforms passed by the Human Fertilisation Embryology Act 2008, and the policy underpinning those reforms, are material considerations for this court in determining this application for leave under section 10 of the Children Act 1989. The effect of sections 42(1), 45(1) and 48 (2) of the 2008 Act is that S and T are not to be treated in law as the parents of, respectively, G and Z for any purpose. I endorse the submissions that the policy underpinning these reforms is an acknowledgement that alternative family forms without fathers are sufficient to meet a child’s need. It is now established beyond doubt that the relationship between a same-sex couple constitutes ‘family life’ for the purposes of article 8: see Schalk and Kopf v Austria[2010] ECHR 995. Thus, D, E, F and G have a family life together, as do X, Y and Z, that is entitled to respect under article 8. Thousands of children in this country are being brought up happily and successfully by same-sex couples. ‘As the usages of society alter, the law must adapt itself to the various situations of mankind’ (per Lord Mansfield in Barwell v Brooks (1784) 3 Doug. 371).

To my mind, the policy underpinning sections 42(1), 45(1) and 48(2) of the 2008 Act is simply to put lesbian couples and their children in exactly the same legal position as other types of parent and children. This is in my judgment the clear intention of Parliament. I do not see any ambiguity in the wording of the Act which, under the rule in Pepper (Inspector of Taxes) v Hart [1993] AC593, is required to justify the court considering reports of recordings in Parliament as an aid to statutory interpretation.

Any person who seeks a s.8 order in respect of that child against the wishes of such parents must obtain the leave of the court which will consider all relevant matters including the factors identified in s.10(9) as explained by Black LJ in Re B (Paternal Grandmother: Joinder as Party). As part of that analysis, the court will consider the rights of legal parents to family life including the right to make decisions about their children. Those rights are widely recognised both as a long standing principle of English law and under article 8. In this regard, the position of a lesbian couple who have been granted the status of legal parents by the 2008 Act is exactly the same as any other legal parent. Having taken those rights into account, however, it is still open to the court, after considering all relevant factors, to grant leave to other persons to apply for section 8 orders. In this regard, the position of biological fathers who have been deprived of the status of legal parent by the 2008 Act is the same as any other person.

As a matter of law, Miss Russell and Miss Fottrell are right to describe S and T as strangers to G and Z. But in another sense, they are not strangers. As a result of choices made by the respondents, both S and T had regular and frequent contact with G and Z respectively. D and E chose S, an old friend of D’s, who lived 100 yards or so away, to provide sperm to enable them to conceive a child. They involved him in preparations before the birth. They invited him to see the new baby, F, immediately after birth and thereafter on a regular basis. When they decided to try for another child, they asked him to provide sperm again. They wanted their second child to have the identical genetic background to their first. Again, they involved S in the preparations before the birth and allowed him regular and frequent contact thereafter. I acknowledge that D and E say that, in some respects, they were acting under a degree of pressure when they involved S in those preparations and arranged the regular and frequent contact with the children, but the fact remains that, for whatever reason, they did involve him in this preparation and did allow him contact. Equally, D and E challenge the quality of the contact S had with F and, in particular, G, saying that, when he visited the home, it was mainly to pay a social call on his old friend D. S does not accept their evidence on these points. Irrespective of the truth about these issues, which can only be resolved after a substantive fact-finding hearing, it is clear, on either version and irrespective of the legal position, that S was not as a matter of fact a stranger to the children. Furthermore, although again no finding on the point can be made without a substantive hearing, it is in my judgment arguable that the relationship that D and E allowed S to develop with the children was linked in some way to their biological relationship.

Equally, X and Y, having met T through D, E, and S, and being fully aware of the degree of involvement S had in F’s life, selected T to provide sperm to enable them to conceive a child, and subsequently allowed T frequent and regular contact on over 50 occasions in the first 18 months of Z’s life. Again, X and Y assert that they were to some extent put under pressure by T to allow that level of contact. They too challenge the quality of the contact. Again, T does not accept their arguments on these points. Again, irrespective of the truth of those issues, which can only be resolved by a substantive fact-finding hearing, and irrespective of the legal position, T is not a stranger to Z. Further, it is to my mind again arguable that the relationship that X and Y allowed T develop with Z was linked in some way to their biological relationship. In their case, it is also significant that they expressly wanted T to be a role model for Z. They could, of course, have chosen any of their relations or other friends to be a role model, but the fact is that they chose T, the biological father of their child, for that purpose. Although no finding can be made without a substantive hearing, it is at least arguable that their choice of T as a role model for Z was again linked to their biological relationship.

By choosing friends, S and T, to provide sperm to enable them to conceive children, and by allowing them to have regular and frequent contact and to place some role (albeit disputed) in the lives of their families, D and E in one case, and X and Y in the other, were exercising their parental responsibility to facilitate some sort of relationship between their children and their biological fathers. This illustrates the true effect of the reforms implemented in sections 42 (1), 45 (1) and 48 (2) of the 2008 Act. D and E, and X and Y, have been granted full and inclusive parental responsibility for G and Z, to the exclusion of the biological fathers. They consciously exercised that responsibility by allowing S and T regular contact with the children. The 2008 Act empowered them to take this course. It did not deny them the right to do so. No doubt there will be some lesbian couples who, after having children by artificial insemination, not only allowed the biological fathers to have contact with the children but also encouraged them to play a full parental role and be recognised as fathers. The 2008 Act denies the biological father the status of legal parent, but it does not prevent the lesbian couple, in whom legal parenthood is vested, from encouraging or enabling the biological father to become a psychological parent. On the contrary, it empowers the lesbian couple to take that course as the persons in whom parental responsibility is vested.

Accordingly, I reject the respondents’ submissions that granting leave to the applicants would have the effect of frustrating the legislative intention behind the 2008 reforms. I accept Miss King’s submissions that the potential importance of genetic and psychological parenthood is not automatically extinguished by the removal of the status of legal parenthood, and that social and psychological relationships amounting to parenthood can and often do co-exist with legal parenthood. She is correct that no other person is absolutely excluded from seeking redress and I accept her submission that biological fathers who are deprived of legal parenthood by the 2008 Act should be treated no differently. Had Parliament intended that a person in a position of the applicants in this case should be entirely stripped of legal remedies, it would have expressly provided that a person in the position of S and T in these circumstances would be disqualified even from seeking the court’s leave.

Furthermore, whilst following the decision in Anayo v Germany, that a biological kinship between a natural parent and child alone will be insufficient to attract the protection of article 8 of ECHR, it is plainly arguable that the relationships which D and E allowed S to establish with G, and which X and Y allowed T to establish with Z, amount to ‘family life’, or alternatively fall within the scope of ‘private life’, so that a refusal to allow the applicants at least permission to apply for orders under section 8 of the Children Act would amount to a breach of their rights under article 6 and 8.

I further accept Miss King’s submission, supported by Miss Reardon, that this court must adopt a fact-specific approach to these applications for leave, by a careful scrutiny and application of the factors under section 10(9), and considering the merits of the proposed applications as required by case law. I therefore turn to consider the application of the criteria under section 10(9), starting with S’s application for leave to apply in respect of G.

And in terms of any general principles to be extracted

Conclusions

When considering an application by a biological father for leave to apply for an order under s.8 of the Children Act 1989 in respect of a child conceived using his sperm by a woman who, at the time of her artificial insemination, was party to a civil partnership, the reforms implemented in ss 42,45 and 48 of the Human Fertilisation and Embryology Act 2008, and the policy underpinning those reforms – to put lesbian couples and their children in exactly the same legal position as other types of parent and children – are relevant factors to be taken into account by the court, alongside all other relevant considerations, including the factors identified in s.10(9) of the Children Act. In some cases, the reforms, and the policy underpinning those reforms, will be decisive. Each case is, however, fact specific, and on the facts of these cases, having considered all submissions from all parties, I find that the most important factor is the connection that each applicant was allowed by the respondents to form with the child.

As has been commented by the solicitors who were advising and representing the legal parents of the child, it becomes therefore extremely important that a clear understanding is reached and ideally recorded, about what each of the three parties involved (the biological mother, father and the legal parent who is the partner of the biological mother) intend and propose about the involvement (if any) that the biological father should have in the child’s life.

Warning, next section for law geeks only

All of the above is potentially interesting to the lay person, and I am sure the case will hit the national press, containing as it does the nature of the modern family, battling parents and the chance to be partisan based on ones political persuasion.

The next bit is not interesting to the lay person, and may possibly only be interesting to about five people in the country. Sorry to be one of them.

The Judge had painted himself into a bit of a corner, since on the first case, he had granted s10(9) leave and then on hearing the more substantive public policy arguments deployed by the legal parents on the second case, wanted to bundle both up together and consider both arguments together. But the s10(9) leave had been given, and there is no scope in the Children Act 1989 to give that leave and then hear an application to remove it. So, it was either find the power to revoke the order, or the case would have to go upstairs to be appealed.

That led to a very odd but potentially significant sidebar discussion about whether a Court has the power to revoke its own order, or whether having made it, the Court was stuck with it, and the redress was limited to an appeal.

Rule 4.1(6) of the Family Procedure Rules 2010 (“FPR”) provides that ‘a power of the court under these Rules to make an order includes a power to vary or revoke the order’. Rule 4.1(6) is, of course, subject to the overriding objective of the FPR as set out in rule 1 “to deal with cases justly”, meaning inter alia so far as practical ensuring that parties are on an equal footing and that the case is dealt with expeditiously and fairly.

Which initially suggests that the Court does have a pretty sweeping power to revoke its own order, providing that it doesn’t put the Court in conflict with the overriding objective.

However,

No party drew to my attention any previous case in which the scope of rule 4.1(6) has been considered, but the rule is in identical terms to rule 3.1(7) of the Civil Procedure Rules 1998, which has been considered in a number of cases in the context of civil claims. In Lloyd’s Investment (Scandinavia) Ltd v Ager-Hanssen [2003] EWHC 1740 (Ch) Patten J (as he then was) considered this power on an application by a defendant for variation of an order made by a deputy judge setting aside an earlier judgment obtained in default of defence, on terms that the defendant should pay a sum into court within 28 day At paragraph 7, Patten J said of rule 3.1(7) :

‘Although this is not intended to be an exhaustive definition of the circumstances in which the power under CPR Part 3.1(7) is exercisable, it seems to me that, for the High Court to revisit one of its earlier orders, the applicant must either show some material change of circumstances or that the judge who made the earlier order was misled in some way, whether innocently or otherwise, as to the correct factual position before him. The latter type of case would include, for example, a case of material non-disclosure on an application for an injunction. If all that is sought is a reconsideration of the order on the basis of the same material, then that can only be done, in my judgment, in the context of an appeal. Similarly it is not, I think, open to a party to the earlier application to seek in effect to re-argue that application by relying on submissions and evidence which were available to him at the time of the earlier hearing, but which, for whatever reason, he or his legal representatives chose not to employ.’

In Collier v Williams [2006] EWCA Civ 20, the Court of Appeal, (Waller, Dyson and Neuberger LJJ), considered the ambit of rule 3.1(7) amongst a number of provisions of the CPR. Giving the judgment of the Court, Dyson LJ at paragraphs 39-40 cited the passage quoted above from the judgment of Patten J in Ager-Hanssen and added:

‘We endorse that approach. We agree that the power given by CPR 3.1(7) cannot be used simply as an equivalent to an appeal against an order with which the applicant is dissatisfied. The circumstances outlined by Patten J are the only ones in which the power to revoke or vary an order already made should be exercised under 3.1(7).’

Later, at paragraphs 119-120 he said:

‘this rule gives a very general power to vary or revoke an order. It appears to be unfettered. But it is a wrong exercise of this power to vary or revoke an order where there has been no material change of circumstances since the earlier order was made and/or no material is brought to the attention of the second court which was not brought to the attention of the first. A party who unsuccessfully deploys all his material before a court should not be allowed to have a second bite of the cherry merely because he failed to succeed on the first occasion …. In short, therefore, the jurisdiction to vary or revoke an order under CPR 3.1(7) should not normally be exercised unless the applicant is able to place material before the court, whether in the form of evidence or argument, which was not placed before the court on the earlier occasion.’

In Edward v Golding [2007] EWCA Civ 416, Buxton LJ (with whom Wilson and Moses LJJ agreed) cited the above passages from judgment of Patten J in Ager-Hanssen and the judgment of Dyson LJ in Collier v Williams and observed (at paragraph 24):

‘The basis of that jurisprudence is that the jurisdiction under rule 3.1(7) is not a substitute for an appeal. There must be additional material before the court in the form of evidence or, possibly, argument. I would reserve the issue of whether additional argument in itself is enough to attract the jurisdiction of rule 3.1(7), but the general thrust of Collier is that the case before the court before which rule 3.1(7) is moved must be essentially different from one of simple error that could be righted on appeal.’

In Roult v North-West Strategic Health Authority [2009] EWCA Civ 444 , the Court of Appeal rejected an argument that rule 3.1(7) could be utilised to vary or revoke an order approving a settlement in a personal injury case. Hughes LJ observed:

‘There is scant authority upon rule 3.1(7) but such as exists is unanimous in holding that it cannot constitute a power in a judge to hear an appeal from himself in respect of a final order. …. Like Patten J in Ager-Hanssen I would not attempt any exhaustive classification of the circumstances in which it may be proper to invoke it. …. It may well be that, in the context of essentially case management decisions, the grounds for invoking the rule will generally fall into one or other of the two categories of (i) erroneous information at the time of the original order or (ii) subsequent event destroying the basis on which it was made. The exigencies of case management may well call for a variation in planning from time to time in the light of developments. There may possibly be examples of non-procedural but continuing orders which may call for revocation or variation as they continue – an interlocutory injunction may be one. But it does not follow that wherever one or other of the two assertions mentioned (erroneous information and subsequent event) can be made, then any party can return to the trial judge and ask him to re-open any decision. In particular, it does not follow, I have no doubt, where the judge’s order is a final one disposing of the case, whether in whole or in part. And it especially does not apply where the order is founded upon a settlement agreed between the parties after the most detailed and highly skilled advice. The interests of justice, and of litigants generally, require that a final order remains such unless proper grounds for appeal exist.’

Giving some qualification to the power to revoke. And of course, granting leave under s10(9) could be argued to be a FINAL order in that application for leave. The application for leave is determined one way or another. If granted, then the Court then moves on to the application for residence or contact. As you can see from the above, it appears pretty plain that the ability to revoke an order is limited to interlocutory and not final orders. That all suggests then that the High Court couldn’t revoke its own order granting s10(9) leave and consider the case afresh in the light of these new public policy arguments.

But clearly, the High Court Judge wanted to hear both of these cases and reach a fair decision, and therefore wanted to be able to set aside or revoke his original order granting s10(9) leave, to start with a blank slate when considering the arguments. [You might think, when reading this argument, that you can detect the delicious taste of fudge]

At the hearing on 22^nd November, D and E, appearing in person, put forward only a limited range of arguments in opposition to S’s application for leave to apply for orders in respect of G. Those arguments focussed on the factual background, referring only briefly to s.42 of the 2008 Act. The skeleton argument prepared by Miss Russell QC on behalf of X and Y in the second case deploys a much wider range of arguments, based not only on the facts of that case, and, as one would expect, a closer analysis of the application of s.10(9) of the 1989 Act to those facts, but also on the policy considerations underpinning the reforms effected by the 2008 Act. The filing of that skeleton therefore gave rise to the prospect that, although the facts of the two cases were not only interlinked but also in many respects similar, the outcome of the applications for leave might be different if the court accepted the policy-based arguments deployed by leading counsel for the respondents in the second case but not cited by the self-represented respondents in the first.

Having regard to the overriding objective of FPR, I concluded that such an outcome would be potentially unfair to D and E, and therefore to G. In those circumstances, I decided that it would be an entirely appropriate use of the power under rule 4.1(6) to set aside the order of 22^nd November. To my mind it was unnecessary to analyse whether the new information which would be advanced on behalf of D and E was ‘fact’ or ‘argument’. It was, in my view, new material which the court had not considered at the previous hearing.

An order granting leave to apply for orders under s.8 of the Children Act is a case management order. It is not a “final” order in the sense of an order that determines the substantive outcome of the proceedings. The court is obliged under the rules to exercise its case management powers in accordance with the overriding objective. Setting aside the order allowed the court to consider the two linked applications together, and apply its conclusions on the policy-based arguments to both cases. Such a course would not be unfair to S. Only a few weeks would elapse between 22^nd November and the re-hearing of his application for leave. S would be able to deploy the same arguments based on the facts that had prevailed at the first hearing. He would in effect be in the same position as T.

Overall, I concluded that the interests of justice would be best served by a re-hearing at which the court had ample opportunity to consider all the relevant arguments on both applications, followed by a reserved judgment. I therefore set aside the order of 22^nd November, and as explained above the two applications were heard together.

I think that this is the right decision for the case and was the right thing to do, but there’s some squashing and stretching that had to be done. Mmmm, delicious Judge-made Fudge.

But there you are,

A Court can revoke any order it makes prior to the final order (and granting of leave doesn’t count as a final order) if there is evidence to show that it is the right thing to do, and doing so doesn’t conflict with the overriding objective to conduct a case justly and expeditiously.

If you did make it that far down, here is a picture of Drawn Together’s Judge Fudge, who is laid back and is always “far too busy, being delicious” [Drawn Together is magnificent, but really I cannot emphasise enough that it is Not Safe for Work, so do not watch it in your office]

7 Comments

Posted in case law, private law and tagged biological parent, can a court revoke its own order, case about donor wanting contact, case about sperm donor, far too busy being delicious, human fertilisation and embryology act, Judge Fudge, legal parent, RE S v D and E 2013, revoking a court order, section 10 (9) Children Act, sperm donor, sperm donor can have contact. Bookmark the permalink.

Rule 16.4 Guardians have a duty to take the initiative

Posted on November 9, 2012 by suesspiciousminds

A discussion of the Re G Court of Appeal decision and what it means for Rule 16.4 Guardians and those representing them.

The case can be found here

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1434.html

Bit of explanatory background – in private law proceedings (i.e where a mother and father are in disagreement about the arrangements for their child and ask the Court to resolve things) sometimes the Court appoint a Guardian (effectively a social work qualified professional who is independent and doesn’t work for Social Services) to represent the interests of the child. This is called a Rule 16.4 Guardian, or often just a 16.4 Guardian. (To confuse things still further, a lot of people still call them 9.5 Guardians, as that was what they used to be called and people aren’t good at change)

It generally happens in really tricky cases where the Court is feeling that some independent presence would be helpful to defuse the situation.

Now, Rule 16.4 Guardians are employed by CAFCASS. Over recent years, CAFCASS have been more and more stretched by demand and have responded to this by directing their individual Guardians to do less and less on individual cases, so they can spread the larger number of cases across the same number of Guardians (by each taking on more cases, but doing less work on each)

At the same time, the solicitors representing Rule 16.4 Guardians are under increasing financial pressures to do less on the case too, because they get fixed fees, and the more time they spent on the case, the less profitable it becomes (often getting close to break-even or worse)

So, that’s the context.

The facts of this case are problematic – it is a case that has been plagued by litigation and appeals, and has already been up to the Appeal Court twice and the House of Lords once. It relates to a father who provided gametes for a lesbian couple to have children, and there was then a falling out about whether he was supposed to play a part in the children’s lives (as he wished) or whether his work and involvement was over at the point the gametes were handed over (as the two mothers wished)

It is not terribly surprising given the massive conflict in this case that a Rule 16.4 Guardian was appointed.

What probably was surprising, both to the Rule 16.4 Guardian and those representing her was that they took a bit of a kicking from the Court of Appeal.

And the Court of Appeal set down, probably for the first time, what the expectations of a Rule 16.4 Guardian is, and it turns out that the Court expect them to ensure that the case is brought back before the Court if problems start to arise. Indeed, the phrase “a clear duty to take the initiative” is used.

This case well illustrates the difficulties that courts presently face, and will more frequently face in the future, when the parties are unrepresented, particularly in a case as complex as the present. What is the duty of the rule 16.4 (formerly rule 9.5) guardian in such circumstances? There is no doubt that the burden on the judge to avoid legal misdirection and to ensure a fair outcome is magnified in such circumstances. At a minimum the children’s guardian, as the only party with the benefit of legal advice and representation must also be vigilant to avoid procedural or other unfairness to one or other of the unrepresented parties.

The order of October 2010 created a common endeavour, the parties to which were the parents, the guardian, Dr Asen and the court. The duration of the joint endeavour was 12 months. If all went according to plan the parties would reassemble a year later to decide the future. If the joint endeavour did not run its intended course it was extremely important for the parties to decide swiftly the immediate future in the light of the unexpected development. The longer the delay the more difficult it would be to repair the breakdown. Absent agreement the court had to be re-engaged. CG had no incentive to return to court. CW who had every incentive failed to do so. In my judgment in the particular circumstances of this case, the guardian had a clear duty to take the initiative. He knew that CW had no advice or representation. He knew that she was appealing to him to act. Perhaps he did not know, but ought to have known from the history, that the maintenance of a relationship between the children and CW’s family had been declared both by the appellate courts and by Dr Asen to be of first importance. He also knew that Dr Asen was not a party, but an expert, whose continuing expertise was both crucial and available.

It is not fanciful to speculate that had the guardian applied to the court for urgent directions in December 2010 there would have been options that were no longer there 16 months later. Had CW advanced her application as modified on the 19^th April 2011, to the judge in December 2010 surely it would have succeeded. But was the delay such as to render it futile? The importance of restoring rather than abandoning relationships was obvious. The advice of Dr Asen was crucially required. Had CW been represented at the directions hearing in January 2012, surely the involvement of Dr Asen would have been canvassed. I do not understand why the guardian did not apply for a direction that would ensure that his advice would be available to the court at what was to be a final hearing.

I emphasise that there can be no criticism of the court. As soon as the judge was made aware of the situation he acted decisively to bring about an early hearing.

One can see why the Courts want to put down such a marker, particularly as we move into a future where more and more of these intractable private law cases will have only one legally represented party (the rule 16.4 Guardian) who will understand the process and how to get hearings listed.

But unless this is accompanied by some change in the way CAFCASS ask 16.4 Guardians to run the cases, and the LSC funding the representation of 16.4 Guardians in such a way that it is open to the solicitor for the child to be proactively case managing the case rather than simply representing the child, I don’t see it working.

In fact, I think a telephone call asking a solicitor whether they will represent a 16.4 Guardian might now cause a mild shiver down the spine of whether this is a case that is economically worth taking at all.

We already know, for example, that solicitors representing 16.4 Guardians come under huge pressure from the Courts to be the sole funder of expert assessments, when the LSC (who pay for them) won’t allow that, and leaving them arguing with a Judge or being stuck with huge expert bills to pay from the solicitors own pocket.

And if you’re now going to have to run around after unrepresented and warring parties to make sure the case is on track and if not whip it back into Court or face blame, it becomes pretty unattractive to represent even the most charming and personable of Guardians.

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Posted in cafcass, case law, private law and tagged CAFCASS, need for Guardian to be pro-active, rule 16.4 Guardian, rule 9/.5 Guardian, solicitor for the child. Bookmark the permalink.

So tired, tired of waiting, tired of waiting for you

Posted on October 29, 2012 by suesspiciousminds

(A quick look at four cases that have been decided, but that I’m still waiting for transcripts of judgments on , and one that I’ve been waiting for for ages, and which turns out to be crushingly disappointing)

Not worthy of full blogs, until I see the full transcripts, because as lovely as summaries are, they do lose the subtleties of having the entire judgment to rifle through for gems.

But anyway, here are four up-and-coming interesting cases. (and I am aware that the section 37 case – is it an abuse of process to make multiple ICOs pegging them on s37 directions when the LA haven’t made an application, went to the Court of Appeal last week, and there will be a judgment on that in due course. I blogged about that one previously here :-

https://suesspiciousminds.com/2012/08/31/ive-got-section-thirty-seven-problems-but-a-aint-one/ ) [And where else in legal blogging do you get both the Kinks and Jay-Z? Can I get an encore/do you want more/cookin raw / with the Brooklyn Boy]

The first, and most recent is RE H (A CHILD) (2012)

CA (Civ Div) (Thorpe LJ, Lewison LJ, Hedley J) 26/10/2012

In this case, the LA were seeking final orders, and the trial judge instead made an Interim Care Order, adjourned the proceedings for three months, and directed a placement at a parent and baby foster placement. The Court of Appeal refused the LA appeal, and determined that the Judge was entitled to make those decisions, having weighed the negative and detrimental impacts on the child of delay against the potential positives to the child.

The interest for me on this one will be (a) how much of a bulwark it might be against the “26 weeks is our aspiration, finish things off quicker” philosophy that is currently so “popular” and (b) whether it is actually authority for the Court having power to compel a Local Authority to place in a parent and baby foster placement.

I assume that this, if there is such a power, derives from s38(6) and the Munby LJ decision in Cardiff, where he determined that a s38(6) placement didn’t have to be in a residential assessment centre, but could be with a family member.

There are two schools currently, one is that the Court CAN compel a Local Authority to place in a mother-and-baby foster placement (or parent-and-baby foster placement) using the Munby decision, and the other is that the Court CAN’T compel, but generally achieves it by rejecting a plan of ICO and separation, and making the LA decide on the ‘lesser of two evils’ between that and having the child at home under ISOs.

[I have to confess, that I am not at all sure which of those is right. My reading of the Cardiff case is that the Judge was stretching s38(6) very creatively to get an outcome that everyone in the case desired, but that it might reach snapping point to try to do it in a case that is actively litigious. But, there are passages in Cardiff that would support s38(6) being used to place a child whereever a Judge thinks fit]

I will be interested to see if the Court of Appeal grapple with that issue at all. And of course, Cardiff was only a High Court decision, so if so, it will be Court of Appeal backing for that authority.

Next up

RE M (A CHILD) (2012)

CA (Civ Div) (Ward LJ, Lloyd LJ, Rafferty LJ) 22/10/2012

This one may fall entirely on its own facts, or it might be incredibly important, which is why I am so keen to read the full judgment and find out. It was an appeal against a finding of fact hearing. The child was a few weeks old and had 8 separate bruises, left forearm, right arm and right thigh. No explanations for the bruises were provided. The medical opinion was that they were non-accidental, in the absence of an accidental explanation. The Judge also found the parents evidence to not be credible and found that the injuries had been caused by them.

The Court of Appeal considered, on the brief note I have available, that this amounted to a reversal of the burden of proof and that it was not for the parents to explain how the injuries were caused accidentally, but for the LA to prove that they were caused non-accidentally.

[This quote from the summary, on a well known law reporting website, not necessarily an extract from the judgment itself – my underlining, to illustrate what seems to be a current direction of travel on medical cases]

“The medical evidence was that the marks were imprints or pressure marks from an object, but it was not possible to say what object or even what kind of object or how the pressure was exerted. Nor was it possible to say whether there was a momentary infliction of pain or a sustained pressure. The instant case was not one of a broken limb, or a cigarette burn or finger pressure. The court simply did not know what had happened or how. The judge had accepted the evidence of one of the doctors that in the absence of a benign explanation from the parents it could be concluded that the injuries were not accidental, but that conclusion did not follow, unless the burden of proof, which lay on the local authority on the balance of probabilities, was wrongly reversed and the parents were required to satisfy the court that the injuries were non-accidental. The judge had erred in finding that the parents had deliberately caused the injuries”

It may be that the case is entirely case and original judgment specific, but it would not surprise me, given the movement of the Court of Appeal in recent months away from “listen to the doctors” towards “the Court should actively contemplate the possibility that medical opinion is not always right, even if there is consensus” if it contains some important principles.

RE C (CHILDREN) (2012)

CA (Civ Div) (Thorpe LJ, Munby LJ) 12/10/2012

Which involves private law, and a finding of fact hearing / change of residence hearing. The trial judge stopped the father midway through his evidence [after he had finished in chief] and gave judgment about the allegations the father was making, essentially dismissing them and the application for a change of residence. The father appealed, in essence saying that had the Court heard mother’s evidence and he had the opportunity to cross-examine mother, his allegations would/might have been proved.

The Court of Appeal determined (again, the quote is from the summary of the case, and not the transcript itself)

Given that the judge had heard F’s evidence in chief, it was entirely appropriate for him to direct himself as he did, namely that F had to establish on the balance of probabilities that there were compelling reasons why the children should be moved. It was the correct exercise of his discretion for the judge to say F had failed to meet that test. There was no error of law or approach either in his determining the standard by which F’s evidence was to be evaluated or to say he was satisfied that F had failed to prove any of the matters to satisfy the court that the residence order should be changed. It was a matter for the judge to determine the form of procedure to satisfy the welfare needs of the children and he was not obliged to listen to evidence if it was not appropriate and the process would be of no advantage to the children. The judge’s view was robust, but he did not exceed the ambit of his discretion. There was no error of law or misdirection in what he had said about the burden of proof or in taking the course that he did. He had taken a decision that was plainly open to him in all the circumstances and it could not be said that he was plainly wrong.

This may be a gratefully received judgment for all Judges dealing with private law cases faced with clearly threadbare evidence for serious allegations, as they may be able to cut them short when it is clear they are going nowhere. [I shall not speculate as to whether the number of such cases will increase or decrease as a result of certain political decisions about funding of family legal aid]

And this one

RE P (A CHILD) (2012)

CA (Civ Div) (Thorpe LJ, Lloyd LJ, Black LJ) 05/10/2012

Where essentially, very serious allegations of sexual abuse was made against the parents. The parents indicated that they did not seek the return of the child or any contact, and that on that basis, embarking on a judicial determination of the allegations was unnecessary (as they were content for the Court to make a Care Order and did not seek any orders in relation to contact)

This is interesting, because it throws up what the role of the Court is – is it to get to the truth, or is it to determine the applications that are placed before it? If having a fact finding hearing doesn’t materially affect the order to be made, how can it legitimately take place on the one hand. On the other, isn’t it important for the child’s care and future to know whether he or she was the victim of sexual abuse?

The Court of Appeal remitted the decision back to the trial judge who had decided not to have a finding of fact hearing, for further consideration – notably of the expert report that having resolution of this issue would be beneficial for the child and that future uncertainty would be detrimental to the child. They also considered that the parents stance on contact might shift (and may have already shifted) and that it was appropriate for all of these issues to be taken into account.

And oh, I see that another one I was waiting for is now up

RE (1) B (2) H (CHILDREN) (2012)

[2012] EWCA Civ 1359

CA (Civ Div) (Thorpe LJ, Kitchin LJ, Dame Janet Smith) 01/08/2012

This case goes to the issue of having a finding of fact hearing where the suspected perpetrator had considerable learning difficulties. It is pertinent for me because I had similar issues come up with a potential intervenor in a case and the law wasn’t entirely clear on how the Court should decide whether to compel them to give evidence, and how the balancing exercise should be conducted.

The trial judge in this reported case decided not to go ahead with the finding of fact hearing, and was appealed.

Sadly, the appeal was unopposed, so the judgment is very short. In effect, the Court of Appeal were persuaded that the role of a finding of fact hearing is twofold (and this may feed into the case above)

The outcome of a fact finding investigation is not only to determine whether the section 31 threshold has been crossed, but also to provide an essential foundation for the trial of the welfare issues that lead to the management decision for the future of the child.

I can therefore suggest nothing further than the tack I used in my case, which was that the Court should weigh the article 6 right to a fair trial against the rights of the vulnerable person and would have to give leeway to the witness when considering confusion about dates, times, details and sequence of events where their learning difficulty impacted considerably

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Posted in case law, fact finding, intervener, private law, threshold criteria and tagged appeals, fact-finding, mother and baby foster placement, section 37, stopping a fact finding before all evidence heard, witness with learning difficulties. Bookmark the permalink.

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

Posted on October 24, 2012 by suesspiciousminds

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And I omit further words:

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

I omit more passages:

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

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

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

“UPON HEARING COUNSEL for each of the parties.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The importance of being formal

Posted on October 22, 2012 by suesspiciousminds

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

The judgment of the Court of Appeal can be found here

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

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

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

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

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

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

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

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

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

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

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

The mother appealed on these grounds :-

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

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

The lead judgment was delivered by Lady Justice Black.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And

Lord Justice Aikens

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

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

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

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

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

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

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

Posted on October 16, 2012 by suesspiciousminds

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Ultra Orthodox or Orthodox – which is best? Only one way to find out…

Posted on October 10, 2012 by suesspiciousminds

The case of Re G (Children) 2012 has attracted quite a bit of press attention, and it touches on some interesting issues; particularly on the role of the Courts in determining religious disputes and how deeply the Court will roll up its sleeves and plunge arms into those murky waters.

The case can be found here

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1233.html

The thrust of the case is fairly simple – the parents separated. The mother diverted from her previous religious beliefs, which were ‘ultra-orthodox’ Jewish specifically Chareidi and now described herself as ‘orthodox’. The father remained of the ‘ultra-orthodox’ Chareidi faith.

They could not resolve between themselves which school their children would be attending (the youngest child was 3, so for him it was an issue for the future). The father wanted the children to attend a Chareidi school, and the mother a Modern Orthodox school.

The Court was therefore faced with a Specific Issue Order application, arising within an application for a Residence order. It was very clear from the evidence that it was not a simple narrow ‘which school is better’ approach, but that the selection of the school would effectively be a determination of whether the children would have an ‘orthodox’ or ‘ultra orthodox’ way of life. It was central to the children’s lives in a way that it would not necessarily be where the religious principles were so intertwined with educational provision.

[Given that orthodox means ‘true belief’ or ‘having the right opinion’ loosely, being orthodox is good, and perhaps etymologically speaking being ‘ultra orthodox’ is either better, or a tautology]

The judgment in the Court of Appeal would be a very good start for distilling the essential principles of how the Court is to approach matters of religious difference.

It is not the place of the Court to weigh one religion against the other, not to comment or criticise religious practices (although they are entitled to look at the impact of those practices on the child), and all religions are entitled to equal respect as long as they are legally and socially acceptable. The Court would have a view on religious practices such as forced marriage or female circumcision on that basis.

Religion – whatever the particular believer’s faith – is not the business of government or of the secular courts, though the courts will, of course, pay every respect to the individual’s or family’s religious principles. Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, after all, demands no less. The starting point of the common law is thus respect for an individual’s religious principles, coupled with an essentially neutral view of religious beliefs and a benevolent tolerance of cultural and religious diversity.

It is not for a judge to weigh one religion against another. The court recognises no religious distinctions and generally speaking passes no judgment on religious beliefs or on the tenets, doctrines or rules of any particular section of society. All are entitled to equal respect, so long as they are “legally and socially acceptable” (Purchas LJ in Re R (A Minor) (Residence: Religion) [1993] 2 FLR 163, 171) and not “immoral or socially obnoxious” (Scarman LJ in Re T (Minors) (Custody: Religious Upbringing) (1981) 2 FLR 239, 244) or “pernicious” (Latey J in Re B and G (Minors) (Custody) [1985] FLR 134, 157, referring to scientology).

The Strasbourg jurisprudence is to the same effect. Article 9 of the European Convention provides as follows:

“1 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2 Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

The protection of Article 9 is qualified in two ways. In the first place, the Convention protects only religions and philosophies which are “worthy of respect in a ‘democratic society’ and are not incompatible with human dignity”: see Campbell and Cosans v United Kingdom (No 2) (1982) 4 EHRR 293, [36]. I mention the point only for completeness; it plainly does not arise in this case, because the parents’ beliefs are in each case clearly worthy of respect. Secondly, whilst religious belief and thought are (subject to that overriding qualification) given absolute protection by Article 9(1), the “manifestation” of one’s religion in “worship, teaching, practice and observance” is subject to the qualifications referred to in Article 9(2).

The important point for present purposes is that the Convention forbids the State to determine the validity of religious beliefs and in that respect imposes on the State a duty of what the Strasbourg court has called neutrality and impartiality: see, for example, Moscow Branch of the Salvation Army v Russia(2007) 44 EHRR 46, [58], where the court said that:

“The State’s duty of neutrality and impartiality … is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs.”

Within limits the law – our family law – will tolerate things which society as a whole may find undesirable. A child’s best interests have to be assessed by reference to general community standards, making due allowance for the entitlement of people, within the limits of what is permissible in accordance with those standards, to entertain very divergent views about the religious, moral, social and secular objectives they wish to pursue for themselves and for their children. We have moreover to have regard to the realities of the human condition, described by Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050, [50]:

“… society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done.”

Where precisely the limits are to be drawn is often a matter of controversy. There is no ‘bright-line’ test that the law can set. The infinite variety of the human condition precludes arbitrary definition.

Some things are nevertheless beyond the pale: forced marriages (always to be distinguished of course from arranged marriages to which the parties consent), female genital mutilation and so-called, if grotesquely misnamed, ‘honour-based’ domestic violence. Plainly, as I wish to emphasise, we are not here in that territory.

Some aspects of even mainstream religious belief may fall foul of public policy. A recent striking example is Westminster City Council v C and others [2008] EWCA Civ 198, [2009] Fam 11, where this court held on grounds of public policy that a ‘marriage’ valid under both Sharia law and the lex loci celebrationis, despite the manifest incapacity of one of the parties, was not entitled to recognition in English law. Again, I emphasise, we are not here in that territory.

Some manifestations of religious practice may be regulated if contrary to a child’s welfare. Although a parent’s views and wishes as to the child’s religious upbringing are of great importance, and will always be seriously regarded by the court, just as the court will always pay great attention to the wishes of a child old enough to be able to express sensible views on the subject of religion, even if not old enough to take a mature decision, they will be given effect to by the court only if and so far as and in such manner as is in accordance with the child’s best interests. In matters of religion, as in all other aspects of a child’s upbringing, the interests of the child are the paramount consideration.

There are many examples of the working out of these principles in the family courts. Sometimes, as in the cases involving blood transfusions for the children of Jehovah’s Witnesses, the issue is literally one of life or death (using those words in the secular sense). The tenets and faith of Jehovah’s Witnesses will not prevent the court ordering a child to receive a blood transfusion, even though both the parents and the child vehemently object: see, for example, Re E (A Minor) (Wardship: Medical Treatment) [1993] 1 FLR 386.

But the clash between a parent’s religious beliefs and a loved child’s welfare may arise in many other contexts. Consider, for example, the wrenchingly sad case of Re S; Newcastle City Council v Z [2005] EWHC 1490 (Fam), [2007] 1 FLR 861, where the question was whether, within the meaning of section 16(2)(b) of the Adoption Act 1976, a mother was unreasonably withholding her consent to the adoption of her son on the basis of religious beliefs that were reasonable and genuinely held. I adjudged that she was. As I said [56]:

“Religious belief is no more determinative of whether a parent is acting reasonably than it is of whether something is in a child’s best interests. Whilst the court will no doubt be slow to conclude that a parent faithfully striving to follow the teachings of one of the great religions of the world is acting unreasonably, there is nothing to prevent the court coming to that conclusion in an appropriate case. Everything must depend upon the facts and the context. In this, as in so many other areas of family law, context is everything.”

Often issues of this kind arise, as in the present case, following the breakdown of the parental relationship in a situation where the parents have different religious beliefs or follow different religious observances. Examples to which we were referred are Re J (Specific Issue Orders: Muslim Upbringing and Circumcision) [1999] 2 FLR 678, affirmed Re J (Specific Issue Orders: Child’s Religious Upbringing and Circumcision) [2000] 1 FLR 571, where there was a dispute between a Muslim father and a Christian mother as to the circumcision of their 5-year old son, and Re S (Specific Issue Order: Religion: Circumcision) [2004] EWHC 1282 (Fam), [2005] 1 FLR 236, where a similar dispute arose between a Muslim mother and a Hindu (Jain) father. We were also taken, and appropriately in some detail, to Re T (Minors) (Custody: Religious Upbringing) (1981) 2 FLR 239, where custody was in dispute between a father who was a member of the Church of England and a mother who was a Jehovah’s Witness, and to Re R (A Minor) (Residence: Religion) [1993] 2 FLR 163, where residence and contact were in issue because the father was a member of the Exclusive Brethren.

None of this is at all controversial but it requires to be clearly understood because it is the essential legal landscape against which the issue in the present case falls to be determined.

In the present context I can do no better than to set out what Scarman LJ (as he then was) said in Re T (Minors) (Custody: Religious Upbringing) (1981) 2 FLR 239, 244-245, in a passage understandably much relied upon by Miss Platt. It is a long passage but it demands citation in full as a powerful and compelling statement of principle by one of the greatest and most socially sensitive judges of his generation. He was speaking in 1975, although for some reason the case was not reported until 1981, but his words remain as true today as then:

“We live in a tolerant society. There is no reason at all why the mother should not espouse the beliefs and practice of Jehovah’s Witnesses. It is conceded that there is nothing immoral or socially obnoxious in the beliefs and practice of this sect. Indeed, I would echo the words of Stamp LJ in T v T (1974) 4 Fam Law 190 in which he said this of the Jehovah’s Witnesses – and what he said is, indeed, borne out by such evidence as we have in this case:

“Many families bring up their children as Jehovah’s Witnesses and the children are good members of the community, although perhaps a little isolated from other children in certain respects. They are different but the same thing could be said of Presbyterians, Catholics and indeed any other religious faith.”

It is as reasonable on the part of the mother that she should wish to teach her children the beliefs and practice of the Jehovah’s Witnesses as it is reasonable on the part of the father that they should not be taught those practices and beliefs.

It is not for this court, in society as at present constituted, to pass any judgment on the beliefs of the mother or on the beliefs of the father. It is sufficient for this court that it should recognize that each is entitled to his or her own beliefs and way of life, and that the two opposing ways of life considered in this case are both socially acceptable and certainly consistent with a decent and respectable life. What follows from that? It follows, in my judgment, that there is a great risk, merely because we are dealing with an unpopular minority sect, in overplaying the dangers to the welfare of these children inherent in the possibility that they may follow their mother and become Jehovah’s Witnesses. Of course, most of us like to play games on Saturdays, to go out to children’s parties and to have a quiet Sunday – some of us will go to church, and some of us will not. This appears to be the normal and happy, even though somewhat materialistic, way of life, accepted by the majority of people in our society. It does not follow, however, that it is wrong, or contrary to the welfare of children, that life should be in a narrower sphere, subject to a stricter religious discipline, and without the parties on birthdays and Christmas that seem so important to the rest of us. These are factors that must be considered, but I think it is essential in a case of this sort to appreciate that the mother’s teaching, once it is accepted as reasonable, is teaching that has got to be considered against the whole background of the case and not as in itself so full of danger for the children that it alone could justify making an order which otherwise the court would not make.”

How then is the court to decide in such a case? I quote again from Scarman LJ (at 248):

“… when one has, as we have here, two good parents, indeed, two unimpeachable parents, each of them following very different ways of life, which have led to the matrimonial breakdown, it does not follow that, because one parent’s way of life is more acceptable to most of us, it is contrary to the welfare of the children that they should adopt the way of life of the other parent that is acceptable only to a minority, and a tiny minority at that.”

So, in essence, both of the religious practices espoused by the parents were legal and legitimate and the Court had no basis for determining that one was in any way inferior or less proper than the other. Equally, it was not right to consider that one was more socially common than the other, and to prefer the one which seemed to our eyes more usual. Or even that one seemed more normal than the other to secular eyes.

How then, were the Court to resolve a problem between two parents, each with Parental Responsibility, and each with a valid and legitimate viewpoint and desire?

Lord Justice Munby goes on a digression here which was fascinating to a law geek like me; and explains exactly why the historical starting point in English law that it was for the father to decide what happens with his children is no longer how the Courts settle things. [And an interesting side note for those who consider that mothers have the upper hand in family courts – there’s 1925 statute law, still in force, to say otherwise. Whether that is followed, or indeed known, much I could not say]

Time was when the solution to a case such as this would have been simple. The court would have declined to become involved and deferred to parental authority, that authority being of course exclusively the father’s. According to Sir William Balliol Brett MR, the court could not interfere with “the sacred right of a father over his own children.” A father had a legal right to control and direct the education and bringing up of his children, and the court would not interfere with him in the exercise of his paternal authority, unless by his gross moral turpitude he forfeited his rights or had by his conduct abdicated his paternal authority: In re Agar-Ellis, Agar-Ellis v Lascelles (1883) 24 ChD 317. That was, to quote the words of Lord Upjohn in J v C [1970] AC 668, 721, the dreadful case where the Court of Appeal permitted a monstrously unreasonable father to impose upon his daughter of 17 much unnecessary hardship in the name of his religious faith.

The retreat from that high water mark of judicial abstention is traced in the speeches of the Law Lords in J v C and subsequently in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. The speech of Lord Scarman in the latter case demands particular attention. For present purposes there are two centrally important developments to be noted.

The first was the eventual realisation that the child’s welfare as judicially determined is paramount. In 1924 Lord Cave LC could treat this as established principle: Ward v Laverty [1925] AC 101, 108. The principle was put on a statutory basis in section 1 of the Guardianship of Infants Act 1925. It has been part of our statute law ever since, now enshrined in section 1(a) of the Children Act 1989 which provides that:

“When a court determines any question with respect to … the upbringing of a child… the child’s welfare shall be the court’s paramount consideration.”

The other equally important development was the dethroning of the father from his privileged position vis-à-vis the mother. The Guardianship of Infants Act 1886 marked an important step in that direction, but the 1925 Act put the matter beyond all argument. The preamble to the 1925 Act read as follows:

“Whereas Parliament by the Sex Disqualification (Removal) Act, 1919, and various other enactments, has sought to establish equality in law between the sexes, and it is expedient that this principle should obtain with respect to the guardianship of infants and the rights and responsibilities conferred thereby:”

The second limb of section 1 was in the following terms:

“the court … shall not take into consideration whether from any other point of view the claim of the father, or any right at common law possessed by the father, … is superior to that of the mother, or the claim of the mother is superior to that of the father.”

Ever since then, men and women, husbands and wives, fathers and mothers have come before the family courts, as they come today, on an exactly equal footing. The voice of the father carries no more weight because he is the father, nor does the mother’s because she is the mother. The weight to be attached to their views, if opposed, is to be determined on the basis of the merits or otherwise of the views being expressed, not on the basis of the gender of the person propounding them. The second limb of section 1 of the 1925 Act finds no place in section 1 of the 1989 Act, though it still appeared in section 1 of the Guardianship of Minors Act 1971, no doubt because by the late 1980s Parliament thought that it went without saying. And no doubt for that reason the true significance and importance of section 1 of the 1925 Act is sometimes forgotten. But it was, and remains, fundamental.

So, it was for the Court to determine what was in the children’s best interests (given that the parents could not agree and had asked the Court to resolve it – Munby LJ was at pains to make clear that this was not the State interfering uninvited with the parents religious arrangements and preferences, but that the Court had been asked to determine the dispute and could not decline to do so). That’s quite a long route to decide that it is a welfare checklist issue, but it was necessary to take the route in this case, to clear out what was important and relevant and what perhaps only appeared to be.

The trial judge had heard evidence about the two schools and the two ways of life, and the impact on the children of following either educational course. In the end, he made the determination that the children would have better opportunities in life by attending the ‘Orthodox’ school as mother desired, rather than the ‘ultra-Orthodox’ school that father wished.

There was then an issue about whether that was too narrow a construction and whether the trial judge had placed far too much emphasis on the ‘pure’ educational component and not enough weight on the ‘entire way of life’ component.

The Court of Appeal dismissed the father’s appeal and did not feel that the Judge had been plainly wrong (indeed, they indicate that they would have been likely to reach the same decision, had they heard the case in its entireity)

In the first place, he had to take into account the present reality that, following the parental separation in October 2010, the children had not been following an exclusively Chareidi way of life. When with their mother they were inevitably exposed to her significantly less strict form of observance. So already, and in significant part, what the father would have wanted for his children, was simply not possible. But the father’s case was, of course, and correctly, that one must not overstate the significance of what had happened. If the children continued within the Chareidi educational system they would have less – very much less – exposure to the non-Chareidi way of life than if they were educated in the way the mother wanted. Judge Copley, as we have seen, was acutely aware of this reality.

At this point a fundamental issue has to be grappled with. What in our society today, looking to the approach of parents generally in 2012, is the task of the ordinary reasonable parent? What is the task of a judge, acting as a ‘judicial reasonable parent’ and approaching things by reference to the views of reasonable parents on the proper treatment and methods of bringing up children? What are their aims and objectives? These are questions which, in the forensic forum, do not often need to be asked or answered. But in a case such as this they are perhaps unavoidable.

In the conditions of current society there are, as it seems to me, three answers to this question. First, we must recognise that equality of opportunity is a fundamental value of our society: equality as between different communities, social groupings and creeds, and equality as between men and women, boys and girls. Second, we foster, encourage and facilitate aspiration: both aspiration as a virtue in itself and, to the extent that it is practical and reasonable, the child’s own aspirations. Far too many lives in our community are blighted, even today, by lack of aspiration. Third, our objective must be to bring the child to adulthood in such a way that the child is best equipped both to decide what kind of life they want to lead – what kind of person they want to be – and to give effect so far as practicable to their aspirations. Put shortly, our objective must be to maximise the child’s opportunities in every sphere of life as they enter adulthood. And the corollary of this, where the decision has been devolved to a ‘judicial parent’, is that the judge must be cautious about approving a regime which may have the effect of foreclosing or unduly limiting the child’s ability to make such decisions in future.

The point arises in its most obvious and extreme form where the issue before the court is whether to require a teenager to submit against their wishes to life-saving medical treatment. There, as Nolan LJ once observed (In Re W. (A Minor) (Medical Treatment: Court’s Jurisdiction) [1993] Fam 64, 94), the duty of the court is to ensure so far as it can that children survive to attain the age of 18 at which an individual is free to do with his life what he wishes. A poignant example is provided by the aftermath of Re E (A Minor) (Wardship: Medical Treatment) [1993] 1 FLR 386, where Ward J (as he then was) had required a 15¾ year old Jehovah’s Witness to have a blood transfusion despite his, and his parents’, vehemently expressed religious objections. A few years later, not long after he had attained his majority, E’s leukaemia returned. He refused a blood transfusion, going bravely to his death steadfast in his religious faith.

But the point arises equally, if in less extreme form, in the kind of case with which we are here concerned. So, in my judgment, Judge Copley was entitled to proceed as he did, just as he was entitled to accept Miss Adams’ analysis. To repeat:

“Whilst it is evident that either decision regarding schooling will result in losses, I have viewed this dilemma as one where I have tried to assess in which situation the children will have the most choices about relationship with both parents in the future, and the most choice about how they wish to live in the future.”

Applying that approach to the particular facts of the present case, and bearing in mind his acceptance of Mrs Adams’ analysis, it seems to me that there were four key strands in Judge Copley’s reasoning.

The first focused on educational opportunity. Here the evidence was clear and the choice stark. Whatever may be the practice in relation to education down to the point when children takes GCSEs, it is clear that, even for boys, the educational options narrow drastically thereafter in the Chareidi system and that tertiary education as generally understood hardly features at all. Career opportunities for boys in professions such as medicine and the law are very limited indeed, for girls virtually non-existent. The contrast with the wider community could hardly be greater. It is hard to imagine how either law or medicine could operate today without the women who at every level and in such large numbers enjoy careers which they find fulfilling and from which society as a whole derives so much benefit. Take the law: when I was called to the Bar in 1971 there were 2,714 barristers in practice at the independent bar of whom only 167 (some 6%) were women; by 2011 there were 12,673 of whom 4,106 (some 32%) were women. That is a measure of just how far society has moved in the last 40 years. And that, in my judgment, is the kind of societal reality to which a family judge must have regard in a case such as this. It is, after all, the reality which is daily on display in our family courts. The present case, as it happens, is typical of many: all three counsel who appeared before us were women, so too were the two solicitors, and so too was the CAFCASS officer. Judge Copley, in my judgment, was plainly entitled to conclude, as he did, that:

“the schools to which she wishes to send them will provide infinitely superior opportunities for these children to gain a much fuller and wider education, not only at secondary level but also at tertiary level should they choose that – the father’s own evidence and that of his witnesses bears this out – and thereafter they will have much greater job opportunities”,

just as he was entitled to accept Mrs Adams’ view that it was:

“more likely that the children will achieve greater economic success if they are given aspirations in relation to careers that exist outside the Jewish community.”

The second strand in Judge Copley’s reasoning was his acceptance of Mrs Adams’ analysis of the emotional impacts on the children:

“If the children were to go to the schools of [father’s] choosing, I think there is a high risk that their relationship with their mother would become problematic … Conversely, if the children go to a school of [mother’s] choosing, there will be considerable losses also … I also think that there is some merit in the observation that a more accepting community composed of children from a variety of backgrounds will make it easier for the children to adjust to being children of a separated family … I think it will be easier for them to make the transition at a younger age, when children are often more adaptable in terms of peer groups.”

In relation to this Mrs Adams made a particularly powerful point:

“It would cause emotional confusion for them to depend upon their mother for love and care, yet have her choices presented as undesirable, and maybe feel that they should not listen to her.”

In my judgment, Judge Copley was plainly entitled to proceed on this basis.

The third strand in Judge Copley’s reasoning was his acceptance of a very important point made by Mrs Adams:

“I am concerned that the children would have difficulty making a decision to embrace their mother’s lifestyle when they are older as they would be fearful of leaving behind everything they had grown up with … On the other hand, within the sort of community their mother proposes, they would be able to return to their religious roots when older.”

Again, in my judgment, Judge Copley was plainly entitled to proceed on this basis.

The fourth and final strand in Judge Copley’s reasoning was his view, shared with Mrs Adams, that on balance the children’s interests were best served by what the mother was proposing. He was, in my judgment, plainly entitled to come to that conclusion.

It follows that the father’s appeal must in my judgment be dismissed. This court can interfere only if it can be shown that Judge Copley was plainly wrong. He was not. I would, however, go further. Far from being plainly wrong Judge Copley was, as it seems to me, in all probability right in the decision to which he came. I suspect that, had I been in his position, having heard all the evidence he heard, I would have come to precisely the same conclusion.

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Posted in case law, private law and tagged choice of school, education, orthodox, Re G (Children) 2012, religious preference, resolving religious dispute, ultra orthodox. Bookmark the permalink.

Is there truly such a thing as an ‘anonymous’ referral?

Posted on September 24, 2012 by suesspiciousminds

A discussion of Re J (A Child:Disclosure) 2012

The case can be found here :-

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1204.html

This was an appeal arising from private law proceedings, but the principles are likely to apply (if not be even more apposite) to public law proceedings.

Effectively, within the time that private law proceedings were going on, an allegation of sexual misconduct was raised against the father. The allegations were made to the Local Authority, who then alerted the mother that allegations of a serious kind, that they had some confidence in, had been made.

The referrer had requested anonymity.

(We go back here to D v NSPCC 1978 AC 171 which established that a principle called Public Interest Immunity applied to information provided to a child protection agency – like NSPCC or Social Services, and that there was a broad public interest in individuals being able to know that they could make those referrals in confidence. In particular that they wouldn’t face threats, violence or harassment as a result of having made that referral.

There’s a larger public debate here, which can easily be understood if you switch the word ‘referral’ with ‘allegation’ – it’s appropriate for someone to be able to make a referral in confidence, but if you put yourself in the place of a parent who is the subject of an anonymous allegation, you would feel entirely differently)

As the father, understandably, was disputing that he had behaved in a sexually inappropriate way, and the issue was going to the heart of whether he was a risky person to have contact with his children, or a safe person, the Court had to have a finding of fact hearing to determine the allegations.

Given that the referrer, who wished to remain anonymous, had become known to the mother, the issue then became twofold :-

Should her identity be formally revealed and the detail of the referral be made known by disclosing the documents
At the finding of fact hearing, should the referrer attend Court and be available to be cross-examined?

The Judge at first instance, who was Mr Justice Peter Jackson analysed the issue in this way :-

a. The father denied sexually abusing anybody. He had not been informed of X’s identity and knew nothing of the substance of her allegations. He asserted that the mother had colluded with X to generate these allegations for the purpose of obstructing contact with his daughter. He argued that for the court not to insist on testing the allegations would be fundamentally unjust and the situation would effectively encourage mothers to make outrageous allegations as a means of alienating fathers and children from each other. The interests of A must come first and there must be a trial attended by X.

b. The mother described herself being torn between the need to protect A and the reluctance to add to the pressure on X. She supported disclosure if it is the only means by which A can be protected, but is concerned about the consequences for X if disclosure takes place.

c. X strongly resisted disclosure of her identity and of the substance of her allegations. She would oppose any attempt to summons her as a witness and would not be able to speak about her allegations if she were brought to court. She was acutely distressed by the effect of the proceedings on her already fragile state of health.

d. A’s guardian asserted that she was unable to represent A’s interests in the proceedings without knowing the detail of the allegations and forming an assessment of them. She submitted that the issue of disclosure was a discrete issue and should be determined separately from any question of X being compelled to attend court to give evidence.

e. The local authority took a neutral stance, but assisted the court by presenting arguments for and against disclosure.

In analysing the competing factors, the judge referred to the following articles of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (‘ECHR’) as being relevant:

ARTICLE 3

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

ARTICLE 6

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

ARTICLE 8

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Having considered the decision of this court in A Local Authority v A [2009] EWCA Civ 1057; [2010] 2 FLR 1757, the judge concluded that the fundamental objective of the balancing exercise is to strike a fair balance between the various rights and interests within the context of achieving a fair trial. In this context he held (at paragraph 29) the following ECHR articles were engaged so far as the court and the local authority as public bodies are concerned:
- Article 6, entitling A and her parents to a fair hearing of X’s allegations;
- Article 8, guaranteeing respect for the family life of A and her parents;
- Article 8, guaranteeing respect for the private life of X; and
- Article 3, prohibiting inhuman or degrading treatment of A and of X.

Peter Jackson J concluded (paragraph 34) that X’s wish not to speak further about her alleged experience of sexual abuse and the risks to her mental and physical health were each aspects of her ‘private life’ within Article 8.

Within the Article 3 considerations fell not only the protection of vulnerable individuals such as A and X, in particular from sexual abuse, but also the protection of X from inhuman treatment by forcing her to give evidence about these matters in the context of her precarious state of health.

The Judge at first instance decided that balancing those competing interests meant that it was right, in the circumstances of this particular case, not to compel X to give evidence, or to disclose the information (he approached it in that order, which becomes relevant later)

48. I have nevertheless concluded that in this highly unusual situation it is not possible for information about X’s identity and allegations to be disclosed to the parties. My reasons are these:

1) I accept the medical evidence about the potentially serious effect of disclosure on X’s health.

2) The information once disclosed, cannot be controlled. X could not be assured that her identity as an alleged victim of sexual abuse would remain confidential within the proceedings.

3) X’s identity and her allegations are inextricably intertwined.

4) For the court to order disclosure when it is not prepared to order X to give evidence would risk harming X without achieving anything valuable for A and her parents. The nature and extent of X’s allegations mean that they could not readily be proved or disproved by reference to third parties or independent sources. It is therefore unlikely that any outcome achieved in X’s absence would clear the air between the parties or provide a solid foundation for future arrangements for A.

5) The court must have regard to the nature of the interests being balanced, namely contact on one hand and physical and mental health on the other.

49. I realise that the existence of this unresolved allegation creates real difficulties in relation to future contact between A and her father. Once the parties have considered this judgment, there will be a short hearing to identify the issues that now arise. For the present, I will only repeat the observation that I made during the Guardian’s submissions, namely that this outcome will not automatically lead to the court making an order for unsupervised contact. That question must be resolved taking account of all factors bearing on A’s welfare

The father’s case, again understandably was, that without having the opportunity to properly test the very grave allegations that had been made against him (and not even knowing who it was he was alleged to have abused) would make it impossible to conduct a finding of fact hearing, and even if the allegations were effectively set to one side with a decision that they couldn’t be proved, they would hang over him and inevitably colour any later decision about his contact.

(The Judge seemed to be saying that X’s allegations wouldn’t be the subject of a finding of fact hearing, but that on its own did not mean that father’s contact would automatically revert to pre-allegation position. And a strand that emerged was that without the allegations being determined one way or another, was it reasonable for mother – who believed them – to be opposed to direct contact?)

The Court of Appeal considered the issue of the trial judge having seen the source material which was not disclosed to the parties , with the long and the short of it being that a Judge who saw such pertinent evidence and decided it was not to be disclosed was really in a position where he had to recuse himself from determining the matter, no matter how hard he would strive to put it out of his mind, ‘justice must not only be done, it must be seen to be done’ :-

Having now had the benefit of looking at these potentially ambiguous passages with the assistance of counsel’s submissions, I am fully satisfied that the judge has no intention of relying directly upon the undisclosed material to support some form of finding on the issue of sexual abuse. His latter comment about the outcome not automatically leading to unsupervised contact would seem simply to be a sensible and proper judicial indication that all substantive welfare options remain open and that all he has dealt with thus far is the application for disclosure.

Despite accepting that the judge’s indication is, within its own context, unremarkable, there is a need to step back to consider how a fair final hearing can be seen to take place if it is conducted by a judge who has read the detail of X’s undisclosed allegations. This is not a topic that is addressed expressly in the judgment, yet to my mind it justifies careful consideration. From the perspective of an insider within the family justice system, I have no difficulty in accepting that any judge of the High Court Family Division would have the necessary intellectual and professional rigour to conduct the final hearing by putting the undisclosed material out of his or her contemplation when considering A’s welfare. That, however, is not the test, or, at least, not the complete test. Justice not only has to be done, but it must be manifestly and undoubtedly seen to be done. How is the final hearing to be viewed by the father if his contact to A is reduced from its pre-2010 level or terminated, when he knows that the judge who has determined the case has read details of serious, but untried and untested allegations against him? The father has already referred to ‘a kangaroo court’ and such a characterisation could only gain prominence in his mind were the case to proceed in the manner contemplated by the current orders.

Often when Public Interest Immunity (‘PII’) is raised the matter to which the PII relates may not be directly relevant to the primary issue in the case and there can be a fair trial of the central issue notwithstanding the fact that material known to the judge remains undisclosed to some or all of the parties. Here the undisclosed information is at the core of the case and represents the entirety of the material relating to the only issue that has generated the mother’s application to vary the contact regime. The father, or an impartial bystander, is entitled to question how there could be a fair trial of the contact issue when the judge is privy to this core material yet the father and those representing A are not. I stress again that I readily accept that if Peter Jackson J were the trial judge he would have approached the matters before him with intellectual and judicial rigour; my concern relates to how matters are, or may be, perceived by the parties and others.

Drawing these observations together, in my view an outcome on the facts of this case whereby the key material has been read in full by the judge but is not to be disclosed to the parties, yet the same judge is going on to preside over the welfare determination is an untenable one in terms of justice being seen to be done. In failing both to consider this aspect of the case and in arriving at that outcome the judge was plainly wrong

There is, as always with Lord Justice MacFarlane’s judgments, a helpful drawing together of the history of decisions on both Public Interest Immunity and balancing of competing Human Rights, and it would be a good starting point for any research on these issues.

The Court of Appeal then determined whether the Court at first instance had gone awry in balancing those matters, and specifically whether in determining that X was not going to give evidence and thus disclosure was of no purpose, that decision had been made the wrong way around (i.e that disclosure was a separate issue to X giving live evidence)

Moving from legal principle to the circumstances of this case, whilst the judge’s characterisation of the probative value of X’s allegations as being unlikely to lead to a resolution of the issue that they raise may be correct on our present state of knowledge, that state of knowledge is based entirely on what X is reported to have said. Because of X’s stipulation that no person is to be told of her allegations, the local authority has not undertaken any investigation of them whatsoever. In so far as X may give a factual context which places X and the father together and within which the alleged abusive behaviour took place, it has not been possible to ask any of the adults who were then responsible for X’s care whether or not that factual context has validity. A’s mother knows only of the label attached to the alleged behaviour, she too may readily be able to validate or challenge what is said about the factual context and the father’s opportunity to interact abusively with X as X alleges. Plainly the father too will be able to give his own account of matters if disclosure takes place. I do not therefore accept Peter Jackson J’s assertion that ‘the nature and extent of X’s allegations mean that they could not readily be proved or disproved by reference to third parties or independent sources’; the position is that, unless or until the relevant adults are told of the allegations, it is simply too early to come to a conclusion on that issue. There is merit in the disclosure of this core material, so that it may properly be evaluated by A’s mother, A’s father and A’s professional representatives, that merit is freestanding and has value irrespective of whether or not in due course X could be called to give oral evidence.

For the reasons I have given, I conclude that the judge was in error in conflating the issues of disclosure and X being required to give oral evidence in due course. In turning to the latter issue first, and concluding that compelling X to give evidence would be oppressive and wrong, the judge unfortunately allowed that conclusion to dominate his consideration of the disclosure question in a manner which is unsupported by authority. The judge was further in error in failing to identify the freestanding value of disclosure which would enable the key adults to understand and give their own factual account of the circumstances within which X alleges that the abusive behaviour took place

And then moved on to make the decision about disclosure :-

In answer to the questions posed within structure established by Lord Mustill in Re D:

a) there is a real possibility that disclosure will cause significant harm to X’s mental and physical health;

b) the interests of X would benefit from non-disclosure, but the interests of A favour disclosure. It is in A’s interests that the material is known to her parents and is properly tested. There is a balance to be struck between the adverse impact on X’s interest and the benefit to be gained by A;

c) If that balance favoured non-disclosure, I would in any event evaluate the importance of the undisclosed material as being central to the whole issue of contact and the life-long structure of the relationships within A’s family. In fact, X’s allegations represent the entirety of the ‘issue’ in the family proceedings. There is therefore a high priority to be put upon both parents having the opportunity to see and respond to this material.

For the reasons that I have given, and approaching the matter in way that I have described, I am clear that the balance of rights comes down in favour of the disclosure of X’s identity and of the records of the substance of her sexual abuse allegations to the mother, the father and A’s children’s guardian.

The Court of Appeal did make it plain during the judgment, that they were considering this on the basis of the individual case and the individual judgment, rather than attempting to pull out some general principles for all cases, and say so explicitly here:-

40 I repeat and stress that this conclusion is specific to the facts of this case where the PII material relates entirely to the core issue in the case. It is not my intention to lay down a blanket approach to all cases, which will fall to be determined by the application of general principles to the individual facts that are in play.

And of course, the key issue in this case is that the referrer X, was not someone who was saying “I have seen father do such and such to a child” or “I believe father has done such and such to a child” but that “when I was a child, this man did such and such to me” (i.e that the referrer was not claiming to have witnessed abuse, but to have been a victim of it)

But the principle remains – in the light of this authority, and the ones cited within the judgment (notably Re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593) ) http://www.bailii.org/uk/cases/UKHL/1995/17.html

Can someone who makes a referral or allegation to a Local Authority, who wishes to remain anonymous, have confidence that they would remain so?

The reality is, that if the referral or allegation is relied upon – i.e that a party to the case seeks to convert that allegation into proven fact (as opposed to ‘it is true that an anonymous referrer said this, but the Court is not asked to determine that what was alleged is true’) then it is hard to see a Court being persuaded that the parents article 6 rights to see the allegation and challenge it are outweighed by the interests of confidentiality to the anonymous referrer.

The deck was stacked pretty heavily in favour of the referrer here – she had been a ‘child victim’, there was psychological evidence about the consequences of disclosure being very detrimental to her, and still the material was disclosed.

There’s the possibility, perhaps long-distant, of a referrer who was told by the Local Authority when they rang up and asked if they could remain anonymous that they could, bringing a claim against the LA when their details were disclosed.

It might well be the case that the only true way to make an anonymous referral is the obvious one – don’t give your name to anyone. If you tell the person on the other end of the phone your real name, they might well have to cough it up at some point in the future.

[If it hasn’t been clear in the discussion above, I am very sympathetic to both sides of the debate – I think it is important that people are able to genuinely alert the right authorities to suspected child abuse without having to have fear of reprisals, but I can also see that where there is suspicion and doubt that such referrals are genuine and might instead be false malicious allegations, there’s a serious interest in the victim of such allegations being able to properly contest them.

It is one of those difficult areas where the overarching public interest in cases generally might well be anonymity, but in any particular case the right thing is more likely to be transparency]

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Posted in case law, contact, fact finding, private law and tagged allegation to social services, anonymous allegation, anonymous referral, d v nspcc, making allegation in confidence, preserving anonymity, public interest immunity, Re J (A Child: Disclosure) 2012. Bookmark the permalink.

On wednesdays he goes shopping, and has buttered scones for tea

Posted on August 28, 2012 by suesspiciousminds

A short post about C (A Child) [2012] EWCA Civ 1144 , the child who nearly but not quite went to Canada. (yes, the title is immensely remotely linked to the story, sorry) . Title two (which will make sense in a minute), was Dylan’s “You don’t need a weather vane to know which way the child goes”

Changes of heart seem to be becoming a bit of a theme in recent weeks, with this case and the Re LB, where the Judge changed her mind after delivering a finding of fact judgment.

https://suesspiciousminds.com/2012/07/19/it-was-professor-plum-in-the-kitchen-with-a-candlestick-no-it-was-professor-plum-and-miss-scarlett/

This one is a private law case, and with an international (if not actually any lumberjacking) element.

http://www.familylawweek.co.uk/site.aspx?i=ed99950

A fairly easy one at first instance. Child is nearly 15, dad wants her to be returned to Canada, child wants to go, mum acquiesces, and a consent order is made. The child then decides, actually, no I don’t want to go to Canada. You can’t, as we all know, appeal a consent order, so this creates a bit of a problem. [Though see http://www.bailii.org/ew/cases/EWHC/Fam/2012/55.html for the door being opened to appeal consent orders made on fallacious grounds]

There was also, of course, the problem that there was the distinct possibility of litigation within the Canadian jurisdiction.

But it is clear that having consented on the basis that the child wanted to go, when she decided she didn’t, it caused a problem. I like this line from the judgment, and will be stealing it “The entire foundation of the order evaporated”

The Judge at first instance was worried, when the case came back before him, considering that he lacked jurisdiction to make an order which in terms would reverse the order already made. As was submitted, the child’s wishes and feelings were no longer cut and dried, and although there was an argument that conducting further investigation into her wishes and feelings and the right course of action might itself compound the emotional turmoil she was in, it might not be as simple as saying that she had decided not to go.

“What are Nicole’s real wishes and feelings? Might she not shift again? Is she perhaps something of a weather vane in relation to her future country of choice? “

The Court of Appeal effectively decided that if father was committed to pursuing his application to have the child returned to Canada, the Court could not bar that application being heard, but judicial shoulders were leaning hard on him and the mother to engage in some mediation and thrash out the issues themselves.

The Court of Appeal do seem to be adopting this course in recent months of trying to make parents take some responsibility for the impact of litigation on their children. One might cynically suggest that the Court is passing the buck in asking parents who are in litigation to sort things out themselves, but it appears to be a phenomenon which is catching on.

MacFarlane LJ – “I would particularly endorse what my Lord has said about the need for the two parents to share the decision about Nicole rather than expect a rather blunt legal process to be deployed and come up with an answer which they as parents have responsibility for taking. The father, in particular, would be wise to step back and look at the situation that now confronts the family with the potential for contested proceedings. Accepting, as I do for the present, Mr Turner QC’s characterisation of Nicole as being a young girl in her mid-teens who changes her mind from time to time and accepting that that might well be the case, I suspect that now that she has made her position plain as it currently is, it is not the moment for it to be met by the robust deployment of an application pursued in legal proceedings. There is surely a need for the father to consider whether that course will do more damage than good to his relationship with Nicole. A better course may be for the parents to agree arrangements and allow Nicole, as she develops in maturity, to make up her own mind as to where she goes and if that is to Canada no doubt the father will be very pleased to renew his relationship with her there on that voluntary basis.”

On a more self-centred topic, I’m about to hit 2,000 reads for the month of August, which is very pleasing for me, and smacks my previous best month. Thank you to all of you for reading. If you do read this blog, and find it anything other than impenetrable legal waffle, I’d be enormously grateful if you could inflict it on a couple of other people you know.

Just like the underpant-stealing gnomes from South Park, I have a three stage plan. http://en.wikipedia.org/wiki/Gnomes_%28South_Park%29

Stage 1 – write blog

Stage 2 ????

Stage 3 profit

[Edit – I’ve realised that if you don’t know that three stage internet meme, you might well think I literally meant that there’s a business plan for the blog and an aspiration to profit, whereas the metaphor was intended to mean the exact opposite – there never is a stage 2 in the gnomes plan, and nor is there in mine. I write this blog because I like writing it. I’d be lying if I didn’t say that it makes me happy to know that people are reading it]

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Posted in case law, private law and tagged appealing consent order, C (A Child) 2012, child changing mind, not going to canada. Bookmark the permalink.

Banging heads together and “a very big ask”

Posted on July 27, 2012 by suesspiciousminds

An analysis of the Court of Appeal decision in RE W (CHILDREN) (2012)

[2012] EWCA Civ 999

I have written about intractable and long-running contact disputes before on this blog, and no doubt I will again.

(The fact that the Court of Appeal have begun to use Sky Sports slang like “a big ask” makes me hopeful for a judgment in the future saying that “The Big fella Stephen Cobb, he’s gone up for that submission on the law, risen like a salmon and it’s just not come off for him. He’ll be disappointed with that” “True, but he’s a top, top, top, top lawyer Martin” – or indeed “If you offered him joint residence now, would he take it?” )

The Court of Appeal grappled with yet another intractable contact dispute case recently in Re W.

This set of private law proceedings were dogged by what seemed to be misfounded non-molestation orders against the father (none of the allegations bar one very mild one being borne out), allegations of a grievous kind against the grandfather (which were not finally pursued by mother ) and of course, failure to comply with interlocutory contact orders.

To cut to the tl; dr bit (as I know you private law family types have busy lives and those schedules about picking up Child A at 4.30pm from the McDonalds in Chiswick High Street on a Tuesday don’t write themselves)

The Court of Appeal seem to be stepping quite deliberately down a path of it being the responsibility of parents (both of them) to try to resolve a contact dispute without this level of hostility, and that there is something which looks like a duty and sounds like a duty, when holding Parental Responsibility to ensure that the rights of the other parent are respected.

And this passage is the nub of it :-

78. Parents, both those who have primary care and those who seek to spend time with their child, have a responsibility to do their best to meet their child’s needs in relation to the provision of contact, just as they do in every other regard. It is not, at face value, acceptable for a parent to shirk that responsibility and simply to say ‘no’ to reasonable strategies designed to improve the situation in this regard.

The awful drift in the case was highlighted here, by Lord Justice MacFarlane

16. Pausing there, it is necessary to note that almost four years had elapsed between F’s initial application for contact in May 2008 and the first substantive hearing in January 2012. Between those dates important decisions had been made by no less than five judges prior to the trial judge. It is to be particularly noted that the one judge who had heard the parties give evidence at the fact finding hearing ceased to hold the case soon after that hearing. F had not seen his children for nearly three years, since April 2009. The papers display a significant element of drift, not least the ten months that expired between the decision to instruct an expert and the filing of her report.

Let me draw further attention to that, because it is astonishing. Almost four years elapsed between father applying for contact and getting a substantive hearing about it.

A child psychologist was instructed and recommended that the child undertake some desensitisation work about contact (which sounds like something from “The Manchurian Candidate” to me, but is no doubt a delightful and charming process involving no brainwashing at all)

The Judge at first instance made the following points in judgment, before eventually deciding against any orders for direct contact :-

28. In setting out her findings and conclusions the judge made the following key points:

a) Each of the two parents love their children, are committed to them and are motivated by a desire to do what they consider to be in the children’s best interests.

b) The difficulties arise as a result of the relationship between the adults, rather than that between the adults and their children.

c) It is in the best interests of these children that they are able to have a meaningful relationship with both of their parents.

d) Dr G’s analysis of the reason for A’s stated refusal to see F is accepted.

The children’s behaviours are now well entrenched and significant work will need to be done with the children to reassure them they can have a relationship with F.

e) Dr G’s opinion that M has experienced trauma as a result of the relationship with F, and has continued to be traumatised by the court process, is accepted. There is a clear pattern of M acting in what Dr G describes as an “adversive reaction” at every stage when contact is ordered or attempted.

f) F has made “considerable progress” in therapy and demonstrates “profound change”. F, however, has a need to undertake a deeper level of work aimed at achieving empathy and understanding for the impact of his behaviour upon M.

g) F would be able to manage contact with the children appropriately, if it were possible to arrange this.

h) Dr G’s concerns about the use of the paternal aunt, HW, as a means to re-introduce F are accepted.

(Note that all of the concerns about Father related to the impact of his involvement in the child’s life on mother, rather than any direct evidence that he had harmed, or would harm, the child)

The decision not to allow contact was contrary to the recommendations of the child’s Guardian, appointed through NYAS.

The Court of Appeal helpfully analyse the appropriate legal tests for making an order that refuses contact in private law proceedings to a birth parent, which this cynical and jaded hack thought might be something of a swipe at those in Parliament who think that the Courts don’t already operate on a presumption that spending time with two parents is best for a child where possible.

39. The second principle, that it is almost always in the interests of the child to have contact with the parent with whom the child is not living, has been approached by judges, both before and since the decision in Re O, as requiring the presence of “cogent reasons” for departing from that general principle. A classic statement of the need for cogent reasons appears, for example, in the short judgment of Waite LJ, from which Sir Thomas Bingham MR expressly quoted, in the case of Re D (A Minor)(Contact: Mother’s Hostility) [1993] 2 FLR 1. Waite LJ said “the judge properly directed himself by asking whether there were any cogent reasons why this child should, exceptionally, be denied the opportunity of access to his natural father.

And here

42. In Re C (A Child) (Suspension of Contact) [2011] EWCA Civ 521, [2011] 2 FLR 912 Munby LJ summarised the relevant ECHR case law as follows:

“a) Contact between parent and child is a fundamental element of family life and is almost always in the interests of the child.

b) Contact between parent and child is to be terminated only in exceptional circumstances, where there are cogent reasons for doing so and when there is no alternative. Contact is to be terminated only if it will be detrimental to the child’s welfare.

c) There is a positive obligation on the State, and therefore on the judge, to take measures to maintain and to reconstitute the relationship between parent and child, in short, to maintain or restore contact. The judge has a positive duty to attempt to promote contact. The judge must grapple with all the available alternatives before abandoning hope of achieving some contact. He must be careful not to come to a premature decision, for contact is to be stopped only as a last resort and only once it has become clear that the child will not benefit from continuing the attempt.

d) The court should take a medium-term and long-term view and not accord excessive weight to what appear likely to be short-term or transient problems.

e) The key question, which requires ‘stricter scrutiny’, is whether the judge has taken all necessary steps to facilitate contact as can reasonably be demanded in the circumstances of the particular case.

f) All that said, at the end of the day the welfare of the child is paramount; the child’s interest must have precedence over any other consideration.”

43. Finally I would refer to the pithy, but nonetheless correct, distillation of this approach in the judgment of Ward LJ in Re P (Children) [2008] EWCA Civ 1431, [2009] 1 FLR 1056 at paragraph 38 where it was said that “contact should not be stopped unless it is the last resort for the judge” and (paragraph 36) until “the judge has grappled with all the alternatives that were open to him”.

(feel free to cut and paste any of that for private law submissions)

The Court of Appeal considered that the decision of the trial judge to refuse contact to the father was plainly wrong and should be overturned.

Most of this judgment is very case specific, and not terribly surprising. But it is the judicial comments about the RESPONSIBILITY element of Parental Responsibility, which begin below, which make the case interesting and potentially significant. (Underlining is mine)

45. Although the welfare principle in CA 1989 s 1(1) is, as I have said, the sole statutory directive to the court determining questions relating to a child’s upbringing, it is not the only statutory provision which bears upon the responsibility for determining and putting into action arrangements to be made for a child’s care within his or her own family. The Children Act 1989 does not place the primary responsibility of bringing up children upon judges, magistrates, CAFCASS officers or courts; the responsibility is placed upon the child’s parents. In the previous sentence I have deliberately used the plural of parent as it is now very frequently the case that the law provides that parental responsibility for each child will be shared by both parents.

46. In a judgment relating to the court’s determination of issues of contact, it is not common to refer to the meaning of “parental responsibility” set out in CA 1989, s 3(1). In my view, there is benefit to be gained from stepping back from a focus upon the court’s role and seeing the function of the court in the wider statutory setting within which the primary responsibility for determining the welfare of a child, and then delivering what that child needs, is placed upon both of his parents and, importantly, is shared by them.

47. In CA 1989, s 3(1) “parental responsibility” is defined as meaning “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”. When there is a dispute as to the arrangements for a child’s care, much emphasis may be put by parents upon the one word “rights” within that all-encompassing definition. Such a narrow focus has no justification when one looks at the plain words of this clearly drafted and important section of the Children Act. The phrase under consideration is not “parental rights” but “parental responsibility”. Along with the “rights….powers…and authority” enjoyed by a parent come the “duties” and “responsibilities” which a parent has in relation to a child. The detailed rights and duties of a parent are not defined more precisely in the Act, but, in general terms, it must be the case that where two parents share parental responsibility, it will be the duty of one parent to ensure that the rights of the other parent are respected, and vice versa, for the benefit of the child.

48. These observations, which are founded upon CA 1989, s 3 and relate to the duties that attach to those who have parental responsibility, do not directly impact upon the decision that falls to be made in this appeal which turns upon the cogency of the material relied upon by the judge in deciding to refuse direct contact. I will however return to the topic of parental responsibility, and its importance in cases of this type, in a short ‘post-script’ at the conclusion of this judgment.

This seems to be implying, or importing, effectively a duty or quasi-duty on parents to act responsibly towards one another for the benefit of the child.

Post-script

72. Having determined the issues in this appeal, I return briefly to the concept of parental responsibility and the potential for it to be given greater prominence in the resolution of private law disputes as to the arrangements for the welfare of children.

73. The observations that I now make are part of a wider context in which the family

courts seek to encourage parents to see the bigger picture in terms of the harmful impact upon their children of sustained disputes over the contact which is most neatly encapsulated in the words of Black LJ in T v T [2010] EWCA Civ 1366:

“[The parents] must put aside their differences … if the adults do not manage to resolve things by communicating with each other, the children inevitably suffer and the adults may also pay the price when the children are old enough to be aware

of what has been going on. … It is a tremendous privilege to be involved in bringing up a child. Childhood is over all too quickly and, whilst I appreciate that both sides think that they are motivated only by concern for the children, it is still very sad to see it being allowed to slip away whilst energy is devoted to adult wrangles and to litigation. What is particularly unfair is that the legacy of a childhood tainted in that way is likely to remain with the children into their own adult lives.”

74. In describing the statutory legal context within which decisions as to the private law arrangements for a child are to be made, I have stressed that it is the parents, rather than the court or more generally the state, who are the primary decision makers and actors for determining and delivering the upbringing that the welfare of their child requires. I have stressed that, along with the rights, powers and authority of a parent, come duties and responsibilities which must be discharged in a manner which respects similarly held rights, powers, duties and responsibilities of the other parent where parental responsibility is shared.

75. In all aspects of life, whilst some duties and responsibilities may be a pleasure to discharge, others may well be unwelcome and a burden. Whilst parenting in many respects brings joy, even in families where life is comparatively harmonious, the responsibility of being a parent can be tough. Where parents separate the burden for each and every member of the family group can be, and probably will be, heavy. It is not easy, indeed it is tough, to be a single parent with the care of a child. Equally, it is tough to be the parent of a child for whom you no longer have the day to day care and with whom you no longer enjoy the ordinary stuff of everyday life because you only spend limited time with your child. Where all contact between a parent and a child is prevented, the burden on that parent will be of the highest order. Equally, for the parent who has the primary care of a child, to send that child off to spend time with the other parent may, in some cases, be itself a significant burden; it may, to use modern parlance, be “a very big ask”. Where, however, it is plainly in the best interests of a child to spend time with the other parent then, tough or not, part of the responsibility of the parent with care must be the duty and responsibility to deliver what the child needs, hard though that may be.

76. Where parental responsibility is shared by a child’s parents, the statute is plain (CA 1989, s 3) that each of those parents, and both of them, share ‘duties’ and ‘responsibilities’ in relation to the child, as well as ‘rights … powers … and authority’. Where all are agreed, as in the present case, that it is in the best interests of a child to have a meaningful relationship with both parents, the courts are entitled to look to each parent to use their best endeavours to deliver what their child needs, hard or burdensome or downright tough that may be. The statute places the primary responsibility for delivering a good outcome for a child upon each of his or her parents, rather than upon the courts or some other agency.

77. Where there are significant difficulties in the way of establishing safe and beneficial contact, the parents share the primary responsibility of addressing those difficulties so that, in time, and maybe with outside help, the child can benefit from being in a full relationship with each parent. In the present case the emotional and psychological make up of the two parents, both separately and in combination, prevented easy contact taking place. Dr G advised that both parents needed to access support or therapy to enable them to approach matters in a different way. F engaged in the necessary work, but M declined to. It may have been in F’s interests to do so, and M may have taken a contrary view; be that as it may, the only interests that either parent should have had in mind were those of each of their two children.

79. The observations that I have made will be, I suspect, very familiar thoughts to family judges, lawyers, mediators and others. My intention in setting them out in this judgment is to give them a degree of prominence so that they may be brought to the attention of parents who have separated at an early stage in the discussion of the arrangements for their child.

80. Whether or not a parent has parental responsibility is not simply a matter that achieves the ticking of a box on a form. It is a significant matter of status as between parent and child and, just as important, as between each of the parents. By stressing the ‘responsibility’ which is so clearly given prominence in CA 1989, s 3 and the likely circumstance that that responsibility is shared with the other parent, it is to be hoped that some parents may be encouraged more readily to engage with the difficulties that undoubtedly arise when contemplating post-separation contact than may have hitherto been the case.

This would seem to be an important and persuasive authority to be used in implacable hostile cases, or where one parent is appearing to unreasonably block attempts to resolve contact.

It isn’t terribly plain what the Court is supposed to do when one parent is not complying with this ‘duty’ or responsibility; which is the million dollar question, but it is interesting (to me at least) that there seems to be a judicial authority for the point that there is something akin to the LA’s “duty to promote contact” for parents.

– Incidentally, because I am a pedant, and suddenly realised that we all know that the LA HAS a duty to promote contact, but couldn’t lay my mental finger on where, I had to go and find it, so here it is:-

The Fostering Services (England) Regulations 2011, reg 14

Duty to promote contact

This section has no associated Explanatory Memorandum

14. The fostering service provider must, subject to the provisions of the care plan and any court order relating to contact, promote contact between a child placed with a foster parent and the child’s parents, relatives and friends unless such contact is not reasonably practicable or consistent with the child’s welfare.

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Posted in case law, private law, Uncategorized and tagged at the end of the day brian, duty to promote contact, intractable contact dispute, long-running contact dispute, parental responsibility. Bookmark the permalink.

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Category Archives: private law

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Banging heads together and “a very big ask”

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