An imaginary judgment [it has been a while, and I always like doing these]. This is like a Kramer versus Kramer for whimsical emo kids…
The Court is dealing today with an application by a father, Mr Edward Scissorhands, for contact with his son, Vincent. Vincent is just 3 months old, and lives with his mother, Kim Scissorhands. The parents have been estranged since the latter stages of the mother’s pregnancy with Vincent, and live apart.
The unusual feature of this case is a stark one. Mr Scissorhands suffers from a unique physical disability, in that he does not possess hands with opposable thumbs and fingers, but rather a series of blades, five on each hand, the longest of which is approximately eighteen inches long. Mr Scissorhands has learned, throughout his life, to use these ‘blade fingers’ with precision and accuracy, and the Court has been shown photographs of ice sculptures made by the father, which show both a high degree of artistic skill and control over these fingers.
It is common ground in this case that Mr Scissorhands is a warm and kind man, who loves and adores his child and that he would be a positive influence and a good role model – his forebearance, inner strength, his kind heart and the way he has overcome what for many people would appear insurmountable obstacles, all do him enormous credit and would be a fine example for his son.
Nor is there any ill-will or animosity between the parents, save for their disagreement as to whether contact can safely take place.
The issue is whether, despite Mr Scissorhands knowledge of childcare and desire to put that knowledge into practice, he would be physically capable of doing so safely.
It is factually correct, and Mr Scissorhands accepts this, that he could not hold his son, nor safely touch him, and that as a result, things that many parents take for granted, such as cuddling, tickling, hugging, changing a nappy, holding the child’s hand when crossing a road, are not possible for him.
He was asked, by counsel representing the mother, for example, to demonstrate whilst in the witness box, how he would play a game of “peekaboo” and this resulted in several minor, but nonetheless real, cuts to his forehead, which would of course be not desirable for either the father or the child in what is ordinarily a happy and joyful interaction.
The father’s face, I should add, does bear healing scars in a multitude of places, caused by inadvertent brushes of the scissor blades on his own face.
One cannot easily ignore, despite understanding that the father would exercise all possible caution and care and would have no intention to cause any harm to Vincent, that if such accidental cuts have happened to the father, causing facial scarring, that it is a risk that cannot sensibly be ignored that a cut might happen, completely accidentally, to Vincent.
I am invited by the mother to find that the father, not as a result of any culpability on his part but as a result of his unique personal characteristics, would pose a risk to Vincent in unsupervised contact, both in terms of an inability meet his needs (he would be unable to hold or comfort Vincent if he were distressed and would be unable to change him, feeding him would potentially be manageable though difficult) and the risk of an accidental injury occurring.
I have to confess that I found this aspect difficult. To make a finding of risk against a father where there is no culpability on his part, appeared at first blush to be harsh, and I had to take care in approaching this.
However, I have to turn my mind to the test that the House of Lords set for assessing the risk of harm (although this applies to public law proceedings, it is still pertinent in this private law case, considering as it does how the Court is to tackle the issue of future risk)
Lord Nicholls in Re H [1996] AC 563 at 585F set out a likelihood of harm as: “a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case.”
It is not necessary, in determining whether there is a risk of harm to the child (as I must, this being not only a live issue for the Court to determine, but one of the relevant factors in the Welfare Checklist which I must have regard to), that is the basis on which I should approach it – on the balance of probabilities, with the burden of proof being on the person who asserts risk (in this case mother) is there evidence of a risk that cannot sensibly be ignored.
I have to answer that question in the affirmative. There is a risk that unsupervised contact would cause harm to Vincent, notwithstanding that father has no wish or desire to cause such harm and that he has nothing but love and warmth for Vincent. When considering the harm element of the welfare checklist, I am not obliged to consider any mens rea or intent on the part of the parent.
My conclusion is that Vincent would be at risk of harm in unsupervised contact and that the risk of harm could not be safely managed, despite any assurances that father could give. The harm would be in effect, outside of his ability to control, no matter how careful he would be, a momentary slip would cut this fragile baby. A baby of 3 months needs to be changed, and comforted, needs to be cleaned, needs to be fed and held. The father, despite his clear desire to do so, is simply not in a position to do that safely.
I am therefore driven to conclude that unsupervised contact for this father is not possible.
I turn then to supervised contact. The mother is not willing to supervise the contact (and of course, directing an estranged parent to supervise the contact of their ex partner would be wholly unusual and indeed undesirable). Nor are any members of her family willing to do so.
The father has no family members who could undertake this task.
Neither parent is in a financial position to fund the supervision of contact themselves.
I have obviously then had to grapple with the fundamental principle that contact with both parents is vital for a child and that contact should not be ceased unless there are compelling reasons for this, only in exceptional circumstances, where there was no alternative. There is a raft of case law to that effect, the most recent being
IN THE MATTER OF C (A CHILD) sub nom AL v (1) JH (2) C (A CHILD BY HER GUARDIAN) (2011) [2011] 2 FLR 912
And therefore, a deal of thought has been given to whether some legal underpinning which ensures that there will be a supervisor for father’s contact, to allow him to have supervised contact until such time as Vincent is old enough to (a) not require such ‘hands on’ care and (b) to be in a position to recognise the need to be careful around his father and have the ability to keep himself safe.
Having established that no family members can supervise the contact, that leaves only professionals. A supported contact centre would not offer the degree of supervision that is required here – it must be more than merely ‘pop in’ or observed contact, there is a risk management function here.
Whilst the Court could potentially make a direction for the Local Authority to prepare a report under section 7 of the Children Act 1989, and recommend to them that they prepare some observations of supervised contact, that would be only a short term solution, at best securing two or three supervised sessions of contact.
Can they be obliged to supervise the father’s contact on an ongoing basis, as that is what is needed here?
The answer, sadly, is that they are not.
I cannot compel them under section 11 (7) (d) of the Children Act 1989, since I am not able to place conditions on contact that apply to third parties (as a result of s 11 (7) (b)
I have been pointed to Family Assistance Orders pursuant to section 16 of the Children Act 1989, where the Court can order a Local Authority to ‘advise assist and befriend’ a family. Does that go so far as to require the supervision of contact?
The case of S V P (CONTACT APPLICATION: FAMILY ASSISTANCE ORDER (1997) 1997] 2 FLR 277 suggests that a Court going over and above the requirement to advise, assist and befriend component of a Family Assistance Order goes too far. Whilst I could invite the Local Authority to supervise contact under such an order, I cannot compel them to do so. I can direct s16 (4A ) for the LA to give advice and assistance regarding establishing, improving and maintaining contact, and direct for them to prepare a report s16 (6)
Additionally, the FAO only lasts for 12 months, and what is required here is something much longer lasting.
There is a temptation to consider making the FAO, directing that the father have supervised contact, and that the LA report in 12 months; and that is something I will store on the back burner for the moment.
I have also considered whether I could reasonably make an Interim Care Order (under which the Local Authority would have a duty to promote the father’s contact, and thus would have to provide supervision of it), but I cannot make such an order of the Court’s own motion, save for alongside a section 37 investigation. I could make more than one such order, if the section 37 report was in my judgment insufficient.
RE K (Children) 2012 [2013 1 FCR 87] being authority for that point.
But in my view, the most that could be achieved by doing so, would be to obtain a series of supervised contact sessions, and information about whether father could have meaningful contact in such a setting. It does nothing to secure the provision of ongoing supervision of contact; which would only happen if either the Local Authority wished to do so voluntarily, OR they voluntarily applied for a Care Order and one was made in due course.
I have made enquiries of the Local Authority, and not surprisingly, they take the view that Vincent is being well cared for by his mother and that a Care Order is not required to protect him. They do not volunteer to either supervise his contact, other than as a ‘one off’ nor to issue proceedings.
To make an Interim Care Order purely to facilitate contact appears to me, in the hackneyed phrase to be a sledgehammer to crack a nut.
[Author’s note, I think I can recall a case several years ago where this was done and supported by the higher Courts but I can’t now find it – if anyone recalls it, please nudge me. It might be Re M (Intractable Contact Dispute :Interim Care Order 2003, [2003] 2 FLR 636 where the Court sanctioned a removal under an ICO and a section 37 to try to resolve an intractable contact dispute. I think it probably is. ]
I thus, it appears to me, cannot order the Local Authority to provide the supervision of contact, and the best statutory provision is to make an order for weekly supervised contact, make the Family Assistance Order for 12 months and direct the LA to report on their work in 12 months time, adjourning any final decisions until that point.
It must be open to question whether the Court could utilise the same rationale as in Re K (Children) 2012, to make repeated Family Assistance Orders where the report does not cover what is desired (i.e reports on the quality of that supervised contact and some ongoing commitment to supervise in the future) – the Court of Appeal in Re K took the view that as there was nothing in statute to PREVENT repeated s37s, it was lawful to do so, and that therefore could be argued in this case, were I to do so. Thus, a succession of Family Assistance Orders could potentially be made, leading to many years of litigation, albeit litigation only revisited annually.
Instead, however, I make an order that the mother should make Vincent available for contact with his father once per week for two hours.
I am entitled, under section 11 to make directions as to how that section 8 contact order will come into effect, and those of course include the handover venue.
Very well, I have determined, taking into account all the circumstances of the case, and the welfare checklist, with Vincent’s welfare being my paramount consideration, that the handover venue should be the reception area of the Local Social Services offices. The father is not to have unsupervised contact, and is not to leave that reception area with Vincent without the express approval of the Local Authority. Those are matters that I direct, pursuant to section 11 of the Children Act 1989
I will ensure that a transcript of this judgment, which indicates that Vincent would be at a risk of serious harm if the father’s contact were not supervised, and that any professional who knowingly allowed Vincent to come to that risk would, in my judgment be negligent.
I trust to the goodwill and sensible nature of the Local Authority staff that they would not allow Vincent to be subjected to a risk of significant harm that a Judge has carefully determined cannot sensibly be ignored. I am sure that they will step in and make sure that Vincent is watched and observed and kept safe during the two hour period when he will be in their reception area (or such other venue as they choose to transport him and the father to)
The parents, may of course, vary the handover location by agreement.
I am certain that any reasonable Local Authority, mindful of their duties towards a child in need (and I find that Vincent is such a child) in their immediate proximity would conduct their section 17 assessment of his needs REASONABLY and conclude that he needs to have the relationship with his father that the Court have determined is vital for him, and that in order for him to be safe, there is a need for services, in the form of supervision.
If I am wrong in my certainty, then another Court will look at this case, either by way of judicial review, or a civil claim for negligence.
Thank you all for your time.
[As ever with my imaginary judgments, all I did was have the kernel of an idea – what would happen in Court if Edward Scissorhands have a baby? And then run with that, with no idea of how my imaginary Judge would get herself out of this predicament that I had cheerfully dug for her. I didn’t get on to the disability discrimination aspects, though it does seem to me that it is solely the result of father being physically disabled and not having hands, that has resulted in him not having unsupervised contact.
The joy of this draconian decision (which occurred to my imaginary Judge, who I think is called Judge Knott-Lestyebe is that not being a party to the proceedings, though the LA would want to appeal it, they may struggle to do so.
Although even this footnote now gets its own footnote – a person who can show that they are a person interested, aggrieved or prejudicially affected by the judgment may appeal with leave Re M (Prohibited Steps : Application for Leave} 1993 1 FLR 275.
Of course, this is all mere fiction and fancy and any lawyer will recognise the most ridiculously far-fetched element of the whole piece – there is no way that post LASPO either party would have had counsel ]
suesspiciousminds 