Friday, 6 March 2015

Case Law: Leave to Remove - "You can't hug Skype"

Case Reference: Re R (A Child: Relocation) [2015] EWHC 456 (Fam)

The mother sought leave to remove to enable her to relocate the child to Hong Kong to take up employment there. This case made headlines (in the Daily Mail) for the observation that Skype was no panacea to a lack of physical contact. The judge observed:
"Miss D. thought that Skype could be beneficial for a child even as young as two because the child could see who they were talking to, but the mother's proposals do not take account of time lag, competing interests in a child's life, what a two year old talks about on consecutive days, etc. Also leaving aside the technology and timing issues, the disadvantages of Skype - as any user will know - are all too often the lack of clarity of image, the sound delay even if short, and, as Miss Mills colourfully notes in her closing submissions, "You can't hug Skype".
The mother's past conduct in relation to contact and what might be viewed as controlling tendencies and a lack of recognition of the importance of the father's role in the child';s upbringing were also significant factors in her leave to remove application being refused.

Where the relocating parent is proposing Skype/telephone contact with young children, this judgment is worth bringing to the court´s attention, and the Honourable Mr Justice Wood's opinion as to Skype (given his tech-savvy experience... which isn't always universal among CAFCASS and the judiciary).

This judgment shows the detailed, critical analysis of proposals and history which is essential in leave to remove cases, and in our opinion, exemplary.

The judgment is available to read via the links below:

Re R (A Child: Relocation) [2015] EWHC 456 (Fam) - Online
Re R (A Child: Relocation) [2015] EWHC 456 (Fam) - Download

Tuesday, 3 February 2015

Successful Appeal against No Order for Contact

Click Image to view R (A Child)
Click Image to open R (A Child)
R (A Child) [2014] EWCA Civ 1664

A successful appeal against the court having ordered no contact with CAFCASS supporting that decision. The lower court had not considered alternatives which might allow the re-introduction of contact.
"14. The judge made no explicit reference to section 1(3)(g), which requires the court to consider the range of powers available to the court under the Act, other than by saying that he had full powers to deal with the case appropriately. In particular, he did not in terms consider the possibility of supervised direct contact. He therefore came to the conclusion that he must follow the recommendation of the court welfare officer. He said that he did so with a heavy heart, because he saw the father's point:"
"... that if only she could take a few initial steps towards a meeting, that would bring her the reassurance that she craves, would dispel worries and concerns and everything would be fine.""
It is also worth noting paragraph 16:
"[16] The applicable legal principles are clear. First, the welfare of R is the paramount consideration for the court. It takes precedence over any other. Second, the court has in a series of cases stressed the importance of contact between parent and child as a fundamental element of family life, which is almost always in the interests of the child, and which 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 where it would be detrimental to the child's welfare. The judge has a duty to promote such contact and to grapple with all available alternatives before abandoning hope of achieving some contact. Contact should be stopped only as a last resort and once it has become clear that the child will not benefit from continuing the attempt. The court should take a medium to long term view and not accord excessive weight to what appear likely to be short term and transient problems. The key question is whether the judge has taken all necessary steps to facilitate contact, as can reasonably be demanded in the circumstances of the particular case; Re C (a Child) [2011] EWCA Civ 521."
The case is encouraging, and looks to the long-term in respect of the importance of assisting the rebuilding of the parent/child relationship. The child was 11 years old and there had been a gap of 7 years between contact, with indirect contact starting in 2012 which was unproductive. The lower court had left matters to the child in respect of contact happening in the future. At appeal, Lord Justice Christopher Clarke said:
"18. The effect of the judge´s order is to preclude all contact between father and daughter, even indirect, unless R should choose otherwise. It contains no provision which might encourage or facilitate contact in the absence of R making that choice. Such an order is rightly described as Draconian."
You'll find this summary on our Parental Alienation and Intractable Contact Dispute Case Law Library (at the bottom of the list of judgments). To go directly to the judgment to read it or download it, click the image above or the following text:

R (A Child) [2014] EWCA Civ 1664

Monday, 2 February 2015

Do You Know Your Family Law - Answers and References

Click on the image to take the quiz
Having seen a range of advice, from very good to not, and given the prevalence of Facebook style quizzes, we thought we'd have some fun with a 'Do You Know Your Family Law' Quiz.

Fun but with a serious side. The quiz is intended for those involved in giving advice on family law as a lay adviser. On the whole, the questions aren't difficult for those with some experience, and if you're helping parents prepare for court, you should know the majority of the answers.

Before reading the rest of the article please Take the quiz - and share it. Don't worry, your answers aren't recorded. The site only records the number of people who take the quiz, not the answers or scores. You're anonymous!

If you want to learn more, The Custody Minefield explains the court process, contains more specialist information than most, and has detailed case law libraries including the full text of judgments in the public domain. Charity staff, McKenzie Friends and parents going through the court make use of it. Please share details of it to help others become better informed and improve their prospects.

Returning to the quiz... we give the answers (both on the quiz site and here, as we want to help inform people and highlight knowledge gaps) so please do not take someone else's published quiz result as a guarantee of their expertise or knowledge. Simply, there's nothing to stop someone cheating or guessing the answers.

Analysing your result: if you scored less than 65%, accept that you are lacking basic knowledge and the advice you give, away from text books or web reference sources is suspect. Perhaps hard to hear, but you're putting yourself and those you help at risk. Time to step back and do more study, and be very sure you're only answering questions where you're 100% sure of the answers, admitting when you don't, and not taking cases where you don't have the knowledge. If you're regularly in court supporting people as a McKenzie Friend in all stages of proceedings, you should have got at least 80%, and have got all the basic questions right (see further on).

For those who support and advise people going to court, consider if someone asked you a question which is in the quiz, and you got the answer wrong. What would be the impact on their case? How might you limit their options? Is your knowledge sufficiently good, for people taking your advice, to risk their relationship with their child through reliance upon what you can tell them?

The Questions
Below we give the question, the answer, and references which inform the answers. We also include our opinion as to whether the knowledge should be considered basic knowledge for any lay adviser, or are more specialist (but should still be known if you involve yourself in that type of case, or stage of court proceedings). Specialist answers we'd normally expect someone with good knowledge to still need to look up, so a score of 90% or above is good.

The three levels of questions are:
  1. Basic Questions - 13 of these amounting to 65% of the total score - the answers should be known by anyone advising on family law, whether as a McKenzie Friend or in a charity support capacity.
  2. Advanced Questions - 4 of these amounting to 20% of the total score - BUT... the knowledge is commonly needed depending on the nature of case or stage of proceedings. If you're involved in the type of case or stage of proceedings to which they refer, you should know the answer.
  3. Specialist Questions - 3 of these amounting to 15% of the total score. You should know where to look for the answers if involved in cases with an international element. If you scored 85% or more without guessing or cheating, well done!
Question 1: "How long do child arrangements orders normally last?"
Answer: b) Until the child named in the order is 16, unless exceptional circumstances exist.
Reference: section 9(6) of the Children Act 1989 [Statute/Legislation] [Basic]

Question 2: "If I am named in a child arrangements order as someone with whom the child lives, can I take my child abroad on holiday for 45 days?"
Answer: a) Possibly, but you must have the consent of each other holder of parental responsibility for the child, or failing this, the court's consent via a specific issue order.
Reference: section 13(1)(b) and13(2) of the Children Act 1989 [Statute/Legislation] [Basic]

Question 3: "Having a residence order or child arrangements order naming me as the person with whom the child lives gives me the right to change the child's surname."
Answer: c) Possibly. You must however first obtain the consent of each other holder of parental responsibility for your child, or failing this, have sought the court's permission via a specific issue order.
Reference: section 13(1)(a) of the Children Act 1989 [Statute/Legislation] [Basic]

Question 4: "Under which of the following circumstances would you normally need to ask the court's permission to apply for contact with a child (via a child arrangements order)."
Answer: a) You are the child's biological grandparent, and saw the child every week of their life.
Reference: section 10(5) of the Children Act 1989 [Statute/Legislation] [Basic]

Question 5: "Under which of the following circumstances would a child arrangements order automatically end?"
Answer b) Once the parents have been living together for 6 months.
Reference: section 11(5) of the Children Act 1989 [Statute/Legislation] [Basic]

Question 6: "A court will only consider making an order for shared living arrangements if the child spends half of their time with each parent."
Answer: b) False
Reference: refer to the cases K (Shared Residence Order) [2008] 2 FLR 380. Care does not need to be more or less equal for a court to make an order for shared living arrangements. The case C (A Child) [2006] EWCA Civ 235 gives a good guide as to circumstances a court may consider for the granting of shared living arrangements. [Case Law] [Basic]

Question 7: "Section 91.14 orders require a named individual to seek the court's permission before applying for further specified orders. Conditions may be attached to the order which a parent must satisfy before they will be granted permission. Is this statement..."
Answer: b) False
Reference: see Stringer v Stringer [2006] EWCA Civ 1617 - While the judge may indicate what might help a litigant in having permission granted in the future, this cannot be set down as a condition for further applications. This point of law should not be confused with a court limiting the types of order to which the s91.14 restrictions may refer. Similarly, the order may be for a specified period of time, but again, this is not a 'condition'. [Case Law] [Advanced - basic if cases involve applications for a s91.14 order]

Question 8: "Which of the following items of evidence should not be included in the court bundle unless specifically directed by the court?"
Answer: e) All of the above
Reference: Practice Direction 27A section 4.1 which related to information which should be excluded from the Court Bundle [Practice Direction] [Basic]

Question 9: Shared living arrangements (called shared residence before residence orders were replaced by child arrangements orders in April 2014), cannot be made if one parent is hostile to the idea.
Answer: b) False
Reference: the judgment in A v A [2004] EWHC 142 (Fam) [Case Law] [Basic]

Question 10: You disagree with your ex-partner's choice of school. You wish the court to resolve the matter. You should apply for...
Answer: a) Specific Issue Order
Reference: section 8(1) of the Children Act 1989 [Statute/Legislation] [Basic]

Question 11: Which of the following countries is party to the 1980 Hague Convention on the Civil Aspects of International Child Abduction?
Answer: a) Russian Federation
Explanation: Russia became a member state in 2011, however is not obliged to assume costs (Article 26 of the Convention). Saudi Arabia and Liberia are not party to the Convention. Saudi Arabia and Liberia have not signed up to the 1980 Hague Convention. [HCCH - The World Organisation for Cross-Border Co-operation in Civil and Commercial Matters] [Specialist]

Question 12: Applications for non-molestation orders and/or occupation orders (injunctive orders made in relation to domestic violence) are heard under...
Answer: b) The Family Law Act 1996
Reference: see Part IV of the Family Law Act 1996. [Statute] [Advanced - basic if supporting people at risk of or accused of domestic violence]

Question 13: The letters CAP, in respect to family law, commonly refer to...
Answer: c) The Child Arrangements Programme
Reference: see Practice Direction 12b (basic knowledge) and reforms introduced by the Children and Families Act 2014 [Practice Directions/Statute] [Basic]

Question 14: You were not married to the mother but are named as the father on the birth certificate. You automatically have parental responsibility for the children if...
Answer: b) The child was born after 1st December 2003
Reference: Amendments were made to the Children Act 1989 via the Adoption and Children Act 2002, which allows for parental responsibility to be granted to unmarried fathers whose children were born on or after 1st December 2003 (when the amendment came into force) where they were named on the birth certificate. [Statute/Legislation] [Basic]

Question 15: Courts can consider someone to be a parent, even if they are not biologically related to the children and no orders have yet been made.
Answer: a) True
Reference: refer to the case G (Children) [2006] UKHL 43 which discusses parenthood being conferred by being a natural, gestational or psychological/social parent. This is unrelated to the acquisition of parental responsibility. This information is particularly important for LGBT non-biological parents (who are a partner to the biological parent), fathers who discover they are not the biological parent where they believed themselves to be a biological parent but otherwise fulfilled this rule, and may similarly support the ongoing role and involvement of unmarried step-parents in children's lives. [Case Law] [Specialist]

Question 16: When making orders in respect of children, one factor which the court should consider is their...
Answer: b) Ascertainable wishes
Reference: see section 1(3)(a) of the Children Act 1989 and clarification of as to why the difference is important in the case H (Children) [2014] EWCA Civ 733. Children's wishes can be influenced, and this is why there is, on occasion, a stark difference between what a child says (their expressed wish) and what their underlying wishes may be (which may also be influenced by attempts at alienation). Is it possible to ascertain their wishes? Are their expressed wishes reasonable? Understanding this concept (among others) is highly important when presenting arguments in support of alienated parents. [Statute/Case Law] [Advanced - basic if cases involve parental alienation]

Question 17: Which rules govern who you can and cannot discuss your details of your case with?
Answer: a) Sections 97 of the Children Act 1989 and Family Procedure Rules [2010] 12.73 and 12.75.
Reference: Sections 97 of the Children Act 1989 and Family Procedure Rules [2010] 12.73 and 12.75 cover confidentiality in respect of family law proceedings. [Statute/Legislation/Family Procedure Rules] [Basic]

Question 18: All countries in Europe have signed up to European Council Regulation (EC) No 2201/2003 (also known as the Brussels II Revised Regulations) which governs the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility.
Answer: b) False
Reference: Denmark did not become party to this regulation. [European Council] [Specialist]

Question 19: Which form would normally be used to apply for a parental responsibility order?
Answer: b) C1 Form
Reference: The C100 form is used for orders made under section 8 of the Children Act 1989, while the C(PRA)1 form is used where parents make a formal agreement in respect of parental responsibility. The C1 form is used for applications for parental responsibility. [Court Forms] [Basic]

Question 20: If a fact finding hearing is carried out concerning allegations of domestic violence and abuse, the court should, having determined whether or not the allegations are true...
Answer: b) record its findings in writing, and serve a copy on the parties.
Reference: See Practice Direction 12J section 29. [Practice Directions] [Advanced - But basic where support is given to those facing findings of fact]

Friday, 16 January 2015

Guide and Case Law Updates - Leave to Remove
Our first new content for 2015 and updates to earlier content have just been published. These include:
  1. a new case law library, on Temporary Removal from the Jurisdiction (initially cases related to a child's temporary removal to non-Hague Convention member states);
  2. a brief summary and full html and pdf versions of judgments are provided where in the public domain;
  3. an update to the guide on Leave to Remove, paying reference to Mostyn J's summing up of guidance in NJ v OV [2014] EWHC 4130 (Fam);
  4. the broken link to the certificate referred to in Article 41 of EC Council Regulation No. 2201/2003 has been fixed;
  5. a review of our Leave to Remove Case Law Library with html and pdf versions of NJ v OV [2014] EWHC 4130 (Fam) added;
  6.  a review and update to the countries that are party to the 1980 Hague Convention on the Civil Aspects of International Child Abduction.
Happy New Year to you all, and we'll have more content coming.

Wednesday, 14 January 2015

Parental Alienation - The Need for Consistency

The Telegraph today ran an article on parental alienation headlined "We must stop turning children against divorced fathers".

It's an area of interest for me, having worked on numerous cases where parental alienation was a factor, and having seen slow change in the courts on how parental alienation is considered and approached.

People still say the court does not recognise parental alienation. This is untrue. That said, it is an area where knowledge and approach are respectively lacking and inconsistent, a point highlighted and indeed raised by senior members of the judiciary.

2014 saw three judgments, which I consider landmark judgments, which consider the level of harm done to children through alienation, and discussions within the psychological community on the harm done to the alienated parent (something rarely considered).

H (Children) [2014] EWCA Civ 733
The Honourable Lady Justice Parker made comments that professionals involved in parental alienation proceedings need a far greater understanding of parental alienation and the harm caused. The social worker involved had held a position that there should be no contact, leaving the child subject to continued alienation and cognitive manipulation by the alienating parent. Parker disagreed:
"74. I regard parental manipulation of children, of which I distressingly see an enormous amount, as exceptionally harmful. It distorts the relationship of the child not only with the parent but with the outside world. Children who are suborned into flouting court orders are given extremely damaging messages about the extent to which authority can be disregarded and given the impression that compliance with adult expectations is optional. Bearing in mind the documented history of this mother's inability to control these children, their relationship with one another and wholly inappropriate empowerment, it strikes me as highly damaging in this case. I am disappointed that the professionals in this case are unable truly to understand this message. The recent decision of the Court of Appeal, Re M (Children) [2013] EWCA Civ 1147 requires to be read by all practitioners in this field. Lady Justice Macur gave firm and clear guidance about the importance of contact. Parents who obstruct a relationship with the other parent are inflicting untold damage on their children and it is, in my view, about time that professionals truly understood this."
Parents who alienate their children cause their children harm. It's a form of emotional and psychological abuse, and arguably, domestic violence.

Parker also dealt with the issue of children's wishes and feelings, explaining in legal terms why there is a stark difference between ascertainable and expressed wishes, when the child has been alienated:
"72. The social worker, JW, who is warm, caring and committed, urges me to leave the children living with the mother because that is what they say they want. Until I enforced contact she was also saying that there should be no contact, because that is what the boys say they want. The proof of that pudding has been very much in the eating, on present showing. I have more than once stressed in this case, as in others, that the word used in the Children Act about wishes and feelings is "ascertainable" and not "expressed". "Ascertainable" often means that the Court has to look at actions rather than words. The ascertainable wishes and feelings of these boys have been demonstrated by the evidence that they are more than happy to be with their father. I suspect they may feel some relief being out of the maelstrom. Their grandmother is calm and robust."
Parker nailed it, handing down a useful authority to help practitioners in this area.

T (Children) [2014] EWHC 2164 (Fam)
This was a case which had, as many do when there is a degree of complexity, dragged on unacceptably with little in the way of resolution due to a process which is not geared towards speed.

Resolution came when the case was transferred to His Honour Judge Hamilton, who had 'got hold of the case'. Guidance included that there was a need for early investigation in such cases, that there should be a Guardian-ad-Litem appointed (separate representation for the child which can aid in investigation), but again some criticism of the social worker for having asked the child leading questions. A lack of expertise among investigating social workers was again an issue.

W (A Child) [2014] EWCA Civ 772
This case saw the court taking a more resolute approach, where the mother had made sexual abuse allegations (quite common) and matters had to proceed to a finding of fact (the judge determining whether the alleged abuse had or had not happened):
"[30] At the outset of proceedings I warned both parents of the serious consequences of pursuing this fact finding exercise. Were the allegations now make [sic] of sexual abuse true, then the court would be finding [the child] had been abused twice over, both by the grandfather and, later, by father. It would almost certainly mean, given [the child´s] distress, the need for a section 37 report, and probably an interim supervision order, and very careful evaluation of the need to protect, of a risk assessment, and the need to manage, with care, a deeply damaged little girl.
[31] Were the allegations untrue, then mother would be guilty of feeding her with untruthful stories, of an obsessive nature, about sexual abuse. Again, I would almost certainly be directing a section 37 report and making an interim care order, as [the child] would then need speedy removal from an abusive home."
His Honour Judge Cardinal, in paragraph 31 of his earlier judgment, raises the prospect of a finding that the mother had caused the child significant harm if her serious allegations were found to be false.

There are arguments that the family court does not sufficiently consider punishing perjury when parents lie in court. More importantly, the court routinely does not sufficiently consider the harm to the child's identity, relationships and wellbeing when false allegations are malicious and would have material consequences for the child had they been believed.

It can be tempting for a parent who faces false allegations to want punishment for the alienating parent. There is no doubt in my mind that a lack of consequence for perjury in the family court has given a green light to parties to lie. That said, first, the harm to the child should be the court's paramount consideration, and too often is not. Things have improved in recent years, but the judgments in 2014 highlight that these improvements are not universal.

In this case, both the local authority, the father, and the guardian-ad-litem accepted the court's judgment. The mother, upon her allegations being found to be false, and the child removed from her care, did not. Sadly, the child was so alienated that an immediate transfer of residence was not possible. The appeal court upheld the lower court's decision:
"21. I ask the question rhetorically: given the court´s findings, how could the judge leave the child with the mother? No level of sufficient support and necessary protection was described by anyone. To leave the child without protection would have been unconscionable. One has only to consider physical abuse to a child that gives rise to a similar index of harm to understand that such a position was untenable. The submission made on behalf of the mother that her care of the child had in all (other) respects been good or even better than good simply misses the point. More than that level of care was needed to protect this child from her own mother."
22. The distress that had been engendered in the child, as advised by the children´s guardian, sadly made an immediate move to the father impossible.
Other cases
Lord Justice Ryder identified 5 flaws in the handling of the case K (Children) [2014] EWCA Civ 1195.
  1. The nature and extent of the applications that were made by the parties, the orders that could be made in consequence and in particular the welfare options underlying those orders, were not identified with sufficient or any clarity;
  2. There was no sufficient welfare analysis of the options that were available;
  3. The proportionality of the removal of A on the grounds of 'safety' from the care of either or both of his parents was not justified;
  4. The separation of the boys from each other was neither considered nor justified; and
  5. The determination of the court was inappropriately influenced by a discussion between the judge and the boys. short, various options should be considered, and while speed is important in helping limit the extent of alienation, there are also risks when this is done at the expense of a detailed investigation, and in the absence of a thorough welfare analysis of the options available to the court. Most of the criticism concerns the specific handling of that particular case, and there is not criticism of interim care as a solution, but its proportionality in the circumstances involved.

It should be noted that Ryder LJ had upheld the decision concerning the use of interim care in the case (above) W (A Child) [2014] EWCA Civ 772 finding alternatives to be 'unconscionable'. Ryder rightly points out that such a resolution must be proportionate.

Further case law concerning parental alienation can be viewed on our Parental Alienation and Intractable Contact Dispute Case Law Menu (click on the link or the image) which includes a brief summary of each judgment, a full version to read onscreen, and PDF versions to download.

We also provide guides to assist the alienated parent, including on the specific subject of Parental Alienation, and upon the role and appointment of the Guardian-ad-Litem.

We also presented at the Families Need Fathers AGM on Parental Alienation and Developments in Law, and a copy of our powerpoint presentation can be accessed below. Please note, if the image appears blurred, increase the resolution to a minimum of 490p via the settings wheel in the bottom right hand corner (the problem is your Youtube setting, not our video).

Powers Available to the Court
It's worth reviewing powers available to the court:

  • Appointment of a CAFCASS Officer
  • Appointment of a Guardian-ad-Litem to represent the child's bests interests and 'ascertainable' wishes and feelings
  • Appointment of an Expert (psychologist), and psychological assessments of the parents and/or child
  • Involvement of Social Services
  • Supervised contact and reporting
The court should (albeit arguably does not sufficiently) satisfy itself that CAFCASS Officers, Guardians, Social Workers and Experts have sufficient experience to investigate and report upon cases where the child might be alienated and his or her ascertainable wishes and feelings are obscurred through alienation.

Powers/Orders Also Available to the Court
  • Parenting Information Programmes (courses to focus parents on appropriate parenting)
  • Penal Notices (the potential exists that the Warning Notice on an existing contact or child arrangements order is not on the face of the order, and this should be corrected)
  • Punitive (community service, fine or imprisonment for contempt of court in the event of non-compliance with orders)
  • Counselling/Therapy (for the parents and/or child)
  • Suspension of residence (or 'living arrangements' within the confines of a child arrangements order) as a stark warning to the alienating parent
  • Reversal of residence (or 'living arrangements' within the confines of a child arrangements order) to remove the child from abuse
  • Temporary Care Order to assist in the transfer of residence where the child has become alienated and an immediate transfer of residence is not possible
  • Family Assistance Order - whereby a welfare officer will assist the family for a period of up to 12 months
  • Supervision Order - if the child is identified at being risk of harm through emotional/psychological abuse
  • Specific Issue Order - in respect of such things as the child attending therapy
  • Prohibitive Steps Order - limiting the alienating parents' role in aspects of the child's life where their involvement may be harmful or perpetuate alienation.
The Need for Expertise, Training and High Standards
We believe that:
  • Experts should be identified and trained, within the field of social work, within CAFCASS, within psychological service providers and the judiciary, specifically in relation to parental alienation, with best practice in investigation shared.
  • A list of these experts should be published (to assist both the court and litigants-in-person).
  • The British Psychological Society to identify a list of suitably experienced, qualified and experienced clinical and child psychologists capable of assisting in alienation case.
  • The President of the Family Division of the Court should set out clear guidance for the management of cases which involve parental alienation and intractable contact dispute.
  • High standards are essential, as a failure in this regard makes alienation more likely to become entrenched and harder to resolve. Counselling and Psychological Practitioners must publish clear service standards, in terms of face-to-face appointments, handling of cancellations, costs and approach to assist both the parents and the court in holding them to account. Practitioners should not subvert or advise against clear directions and the strategy of the court of their own volition and without referring back to the court.

Friday, 19 December 2014

ABC - Attitude, Behaviour and Child Focused - A case in point

ABC is so important when separated parents are seeking arrangements for their child... get that right, and regardless of the other parent's position (albeit it helps), your prospects improve and your child will come out less damaged.

In Re D (a child: private law proceedings) [2014] EWHC 2749 (Fam) we see a prime example of how damaging attitude and behaviour can be to a case and a child, but the potential that exists to turn matters around to achieve a successful outcome for all. A positive Christmas message if ever we saw one, and an important message to take on board.

Credit to Mrs Justice Pauffley in what appears to me as a very balanced judgment and steps to resolve a long running, intractable dispute.
"The court can only make informed child arrangements orders when there is a full understanding of why relationships between parents have faltered. Trying to impose what may seem like common sense proposals, against the wishes of one parent and without permitting each of them the opportunity for a proper hearing may impede rather than expedite progress. A sticking plaster over a gaping and infected wound would never be an adequate treatment plan."
 An observation on another point:
"It is often relatively straightforward to be wise with the benefit of hindsight. But this case exemplifies how important, even crucial, it is for the court to hear evidence in those private law disputes which show signs of being impervious to very early compromise. The process of describing the difficulties of itself, for those most intimately involved, can be immensely cathartic."
If the court hears evidence at an earlier stage, cases are likely to be less protracted, and positions less entrenched. An important point in case management, and to reduce the cost (emotional and financial) for not only the parents and child, but the court itself. Would the process of separation be less painful were the system less adversarial, more inquisitorial and solution based... of course.

Also see our guide:

 Neutral Citation Number: [2014] EWHC 2749 (Fam)
B e f o r e :
Re D (a child: private law proceedings)
Alex Verdan QC and Haylee O'Brien for the applicant, father
Amanda Buckley-Clarke for the respondent, mother
James Mulholland for the local authority
Andrew Leong for the Children's Guardian, a NYAS caseworker
Hearing dates: 21 – 24 July 2014
Crown Copyright ©
Mrs Justice Pauffley:
Introduction, essential background and issues
1.      These proceedings were begun as long ago as September 2010. They relate to a child, D, who is just 10 years old. She has been at the centre of conflict between her mother and father since she was 6. Throughout the past four years, there has never been a time when her relationship with her father has been free and easy.
2.      There have been 23 court hearings prior to this one. All of the District Judges at the local court, past and present, have been involved with the case at some stage. Final hearings have been listed on four occasions – in December 2012, April 2013, June 2013 and October 2013. A compromise order was made on the second day of the October 2013 hearing. No evidence was heard on any occasion.
3.      I became the allocated judge in January this year. This hearing has been –
    to discover why it is that D has been unable to maintain an untroubled relationship with her father;
    to consider various practical alternatives for the ways in which she might be spending time with him;
    to decide whether there is a legitimate basis for the making of an interim supervision order and, if so, whether that would accord with D's welfare needs.
4.      D was born in 2004, the only child of her parents' relationship with one another.
5.      The chronology prepared by the father's legal team extends to 41 pages. It is an invaluable forensic tool. It would not add anything to incorporate extracts within this judgment.
6.      The hearing has been dynamic. Positions have shifted so that, by the end, almost nothing remained for decision.
The cause of the problems
7.      The single most important question is why there has been so much trouble for D in maintaining a good and loving relationship with her father. Unless there is firm basis for understanding why there has been so much difficulty, it will be really quite impossible to make improvements for the future.
8.      It is not hard to answer that question now that the parents and B, the mother's partner, have given evidence. The first thing to say is that responsibility for what has gone wrong does not lie on one side only. It is clear there have been mistakes made by the father as well as by the mother and B.
9.      As long ago as September 2010, when the father did not allow D to go home to the mother after a holiday, he accused B of having sexually abused his daughter – a very serious allegation to make against anyone, as he acknowledged in evidence. The father explained he had heard that B had washed D (then 6 years old), without a flannel, between her legs. He did not think she should have done that, it should have been the mother; and, as he said in evidence, he "showed his concern and wanted to protect his daughter in the best way possible." He did that by contacting the police and social services. Significantly, he did not open a dialogue with the mother which, almost certainly, would have been the most sensible, reasonable and appropriate thing to do in the circumstances. He took the matter of how D was washed to the authorities. He caused a great deal of trouble.
10.    Though the father agrees he did not act in D's best interests by failing to return her home after holiday contact in September 2010, I gained no sense from his evidence that he is regretful about accusing B of sexual abuse. He made no secret of his wish that B would disappear from D's life and said he believed that if she did then he would be able to have good communication with the mother and restore his relationship with his daughter.
11.    It was clear to me that the father has very little regard for B. He believes she is trying to damage him. He has known her for 30 years, considers her two-faced and believes it is much easier not to be friends "to save all the hassle." Most importantly of all, he accepted in evidence that he has said to D, "A lot of people are frightened of B." That was a very harmful thing to have said – as he would realise immediately if he were able to put D's feelings ahead of his own.
12.    The inescapable fact is that the mother and B have been a couple for several years now. They would seem to be committed to one another and wish to share a home together. At the moment, they live close by to and spend a lot of time with one another. B is close to D and plays an important part in her life – a fact which the father finds extremely difficult. He believes that B yearns for a daughter. His evidence revealed how frustrated he is by the way in which he feels his place in his daughter's life has been taken by B.
13.    The mother and B are on the defensive and feel, as they both said in evidence, that everyone is picking on them. They feel they have been "unfairly criticised for being bad parents." Both of them consider themselves to be good parents – a fact which has prevented the mother, almost certainly, from taking part in parenting classes or separated parents' programmes whenever they have been offered. After all, she would say, I am a mother to several children; I know what I am doing and do not need help.
14.    The mother feels she is under attack as the result of the court case. It's all been very stressful and is "too much pressure." As B said, the father has "made a lot of appeals and it does become a bit of a war."
15.    The single most important error made by the adults has been to allow D to be exposed to their strength of hostile feelings, as happened – for example – in September 2011. There was a protracted, angry and aggressive handover. The mother has claimed it was the father who grabbed D under the arms and forced her into his car. The father's sister has said it was a member of the mother's family who was responsible. In evidence, the father said he had carried D into the car because the mother's sister had said, "You have to take her." He agreed that D had bumped her head on the way into the vehicle. Initially, the father said he was not responsible for his actions on that day but then added he could have done things differently. He said it had been a cruel thing to do to a child and the person who had been most hurt by what happened was D – there was no doubt about it in his mind.
16.    When B was asked about the impact of that incident upon those present and who had been most hurt by what had happened, she said that she had been upset and then added the mother and also her own sister. B said the idea to film the handover had come from the police because she would then have had proof that the father was harassing her – "he had been bringing up (her) name all the time and, no, it had not helped in the long run."
17.    By all accounts, the events of that contact handover were really quite dreadful. Some twenty or so adults were present. D was in the middle of and witnessed terrible conflict. After that, she could have been in no doubt. She knew – because she saw it for herself – that her mother, B and that side of her family are strongly antagonistic to the father and his family. It was a scene which no child should have witnessed. If it was a set up – and it's difficult to believe it could have been anything else, given the video recording made – then it is a very worrying sign that the mother and B were prepared to expose D to such harmful conflict. She must have been caused considerable emotional harm. It is very worrying indeed that B, seemingly, had no appreciation of the effect upon D of being literally in the middle of such a ghastly fight.
18.    The likely effect upon D was to remove any doubts she may have had about her parents' ability to co operate and behave in a civilised way towards one another for her sake. What happened on that day has cast a long shadow. If the mother and B were prepared for so public a fight over D, what I wonder do they say to her about her father when they are at home and in private? There really is no room for doubt. Currently, the mother and B are strongly averse to the father, as all of their discussions with professionals reveals. I believe D has been either actively or passively encouraged by the mother and B to join in with the negativity directed at her father.
19.    Another of the mother's and B's biggest mistakes has been to allow D, from a very young age, to become so powerful. They both believe that court proceedings and court orders are "a waste of time." They have said that "people should listen to D's views and give her a break from contact." The mother fails to recognise the need to provide guidance and appropriate boundaries. It is quite simply unacceptable to leave decision making to a 10 year old child, still less a child of 6 or 7. All the indications are that from just such an early age D's feelings have been used by the mother as the prime reason to oppose contact.
20.    D's views – however they may have been formed – are important considerations. But that is not to say, they should take priority over other factors. Quite obviously they should not.
21.    It was very interesting to listen to the mother's evidence about the possibility of a particular group activity. I found her to be remarkably resistant to D taking part. What she said about the issue provided a prime example of how she is allowing D to take important decisions which, as a parent, the mother should be making for her child. She said that D has a busy life – with her other activities. She was not sure D would have time for the group and added, "I'm not bothered if she wants to go but I'm not sure how she'll feel about it, how she will respond." The mother said that although it would be fine for her to go, she did "not want to see her tired."
22.    I was left in no doubt about the extent to which the mother can be stubbornly resistant to agreeing to something which most parents would immediately recognise was a good option for their child. The mother is overly sensitive and becomes very defensive whenever she feels some aspect of her parenting is being criticised.
23.    I have little doubt but that she has viewed the advice of judges and court orders in a similar way. The mother, supported strongly by B as she has been in relation to everything to do with the father, has simply believed she knows best and will take very little notice of professionals' advice or court orders if she does not agree. That, to my mind, is why so far there has been such pitiful compliance over the years.
24.    One of the final matters for comment in this section of my judgment is the obvious point that none of the adults seems to have much understanding apparently of the impact of their actions upon others. Currently, they do not seem capable of empathy towards one another maybe, just maybe, because the dispute has lasted so long. The father is so furious at the way in which his position with the mother and D has been usurped by B that he fails to see how his dislike for her must hurt the mother as well as D. The mother and B are so bound up in their relationship and desire to be together, to the exclusion of the father, that they cannot envisage a role for him and they deny D the opportunity to have a positive relationship with him.
25.    So there has been fault on both sides; and it has probably not helped that all of the adults have known each other for such a long time and, as I understand it, move within a comparatively small social circle. The distrust and lack of respect run deep. It will be an immense task for the local authority social workers to try to effect changes in attitude after such an extensive period of corrosive bad feeling.
26.    Lastly in this section of my judgment I should say that in their different ways the parents are both impressive people. Neither of them is a villain. Each has been affected by the harmful effects of almost four years of litigation. The father has been persistent in using the court to secure a relationship with D – but he has done so because he sincerely loves and cares about her, not in an attempt to make life difficult for the mother or B. His frustration with them is obvious but he genuinely wants to make things better for D's sake.
27.    Almost certainly, the mother has a softer side than she was able to reveal at this hearing. I'm sure she looks after D extremely well in almost every area of her development and, generally speaking, the mother is fun to be with. She, like any parent, deserves respect for the things she does well. Constant criticism is too much for anyone to take.
28.    It has not assisted the situation at all that the broad swathe of professional evidence has tended to attribute almost all of the responsibility for the problems at the mother's and especially B's door. A more balanced approach in the years preceding this hearing might well have resulted in progress much earlier.
29.    The past four years of relentless litigation has caused the mother in particular immense anxiety. There is a way through these difficulties. The key to success will be acknowledgment of responsibility and a willingness to accept advice.
The practical alternatives for the time that D should spend with her father
30.    There is no apparent disagreement, whatever the papers might suggest, with the idea that D should spend a longer period with her father whenever she sees him. The mother said she would agree but she would rather have the social worker there to see how D gets on. The mother thought D would "panic" if the extension of time happened too quickly but she was "fine about it if the social worker was involved" adding that D could be "stubborn minded."
31.    The father who told me he "loves D to bits" believes longer periods of seeing her with the paternal grandmother's home as the base, is a "great idea." He described how the first hour of any contact, under the current regime, would be spent in trying to calm D down; and that once the ice is broken, contact is almost over. So there has not been enough time; and he talked about all of the activities they would be able to do if he were to see D over a longer period other than in the current venue.
32.    I see every reason to make alternative arrangements not least because the current scheme has become so very fraught. It is a fundamentally bad idea for the mother to be in close proximity and for D to know that. It gives credence to the idea that in some way D will not be entirely safe with her father and / or that he (and his very capable sister) will not be able to cope with her behaviour. Indeed, it may well have made it more likely that D will have put on a performance of being unhappy. It must have been acutely embarrassing that her sobbing resistance to her father has occurred in a public place under the gaze, presumably, of curious strangers.
33.    So there is every reason for the arrangements now to switch to the paternal grandmother's home and to be extended beyond three hours. I can see no good reason why D should not spend a full day with him; and within a short while (by which I mean after two months or so) she should be spending weekends at her father's home as she did, so satisfactorily, in the period before September 2010 as well as on two occasions in 2011.
34.    It is vital that early steps are taken in an attempt to re-build relationships between the mother and father for D's sake. Viewing the matter realistically and understanding the depth of ill feeling between the father and B, I consider it unlikely that they will able to bridge their differences in the very near future. But there is ample scope for the parents to concentrate upon restoring some semblance of a civilised relationship with one another. There is a long overdue need for each of them to express regret and, hopefully, remorse for the mistakes they have made, for the hurt caused and for them to understand how their actions have affected D. Until they have had an opportunity to talk about the distress, unhappiness, mistrust and bitterness arising out of their relationship breakdown, to understand how difficult it has been on both sides, there will be no adequate basis for restoring trust between them and a common purpose in relation to their daughter. The starting point is the work envisaged by the local authority's plan with which, so encouragingly, both parents are fully in agreement.
35.    In answer to one of my questions, the father said that "of course" the mother would be welcome to come in to the home he shares with the paternal grandmother. She is an elderly lady. The father poignantly described how, in a way, his mother misses D's mother; and that she has not seen D for two and half years.
36.    From D's perspective, there could be no better news than that her parents were going to sit down around the paternal grandmother's kitchen table; that the decision has been taken by them together that it is much better for her to have longer with her father than just three hours; and that she will be seeing him at his home from which they will be able to go out and enjoy all sorts of activities. The mother will be able to say to D that there is no reason at all for her to be anxious. Her father loves her to bits and only wants her to have a good time.
37.    It is not, and should never have been, a question of the mother having to force D to see her father. The mother has a responsibility to offer D wise guidance and boundaries. If she is able to demonstrate there is no problem whatsoever in any arrangement for D to spend time with her father, that it is something the mother warmly welcomes and supports, then all of the problems of resistance and 'acting up' will simply fall away. Children take their cues as to how they should behave from those to whom they are closest. The mother does not have to say she does not like the father for that to be obvious to D. The time is long overdue for the mother to begin to act responsibly and with courtesy towards the father.
38.    It would be a very encouraging sign if the father were able to bring himself to say he is sorry to the mother for the unkind things he has said about B. The snide remarks must stop if there is to be hope, for the future, of improved relationships. The mother would be acting in her daughter's best interests if she were able to acknowledge some of the father's pain – that he is no longer a day to day part of D's life, feels excluded and has been through a terrific ordeal in trying to preserve his relationship with his daughter. Only when the parents are able to relate together as civilised, polite and respectful former partners will they truly be able to say they are doing the best they can for their daughter.
Is there a legitimate basis for the making of a supervision order: would such an order serve D's welfare interest
39.    Whether there is a legitimate basis for making a supervision order depends upon my findings in relation to significant harm. Unless I am able to find there is reasonable cause for believing D has been so harmed then there would be no foundation for making an interim supervision order. Such an order could only be made if also I were to be satisfied that it is in D's welfare interests.
40.    The local authority's application encapsulates the problems in a way, broadly speaking, I cannot improve upon. It must follow from the findings made in the earlier parts of this judgment that I wholeheartedly endorse the local authority's quite excellent formulation of the grounds for intervention.
41.    I can go further than is required by s.38 (the test for interim orders) because evidence was given over four days. So these findings are made not on the basis of "reasonable cause to believe", they are my final findings. I am altogether persuaded that D is suffering significant emotional harm attributable to the way in which her parents have responded to her needs over a period of almost four years.
42.    The mother and the father have exposed D to their adult conflict and acrimony. She is deeply aware of the dispute between them but powerless to change it. She has grown and developed in an environment where her requirement for a relationship with both parents has not been prioritised by them.
43.    D knows all too well about her mother's negative feelings towards her father and his hostile attitude towards the mother's partner, B. D has responded to the situation in the only way possible for a child of her age. She has associated herself strongly with her mother – her primary carer – to protect herself from constant conflict with the one person upon whom she is dependent.
44.    The mother is unquestionably able to provide D with good basic care but she shows no insight into how her lack of guidance and boundaries around contact is detrimental to D's welfare. She allows D to make decisions about whether and where she should see her father and places decisive weight upon D's expressed wishes and feelings. This is a grave error and places D in a profoundly difficult, almost impossible, position from which she does not have the resources to extricate herself.
45.    Currently and for several years now, the mother has shown no insight into the need to adapt her parenting so as to meet D's emotional needs and refuses to acknowledge she has any difficulties in this area. She is on record as saying, "This is nothing to do with me – it's D and I have nothing to say really, no comment."
46.    The father has been persistent in his quest to have a relationship with his daughter but he, too, lacks intuitive understanding of the likely impact of his actions. It has been profoundly unhelpful to his relationship with the mother than he loses no opportunity to criticise B. He fails to see how his negative attitude towards B, of which D is all too aware, will have affected her. He allows his own frustration at the current situation to infect his relationship with D.
47.    If there is to be early potential for dramatic improvements, the father will have to moderate his responses and begin to accord respect to the mother in the choices she has made about how and with whom she lives. She will have to react swiftly and positively to suggestions about how she can behave differently towards the father and D so as to rescue her daughter from the impossibility of her current situation.
48.    D's welfare demands that a supervision order be made. The local authority's plan for immediate action is a good one. Every aspect of what is suggested, as emerged during the social work manager's thoughtful evidence is endorsed by me. There is no time like the present for the work to commence – so I reject the mother's suggestion of a delay until September. The plan will be implemented, as planned, next week. The father will spend extended time with B in just over a fortnight from now after preparatory steps have been taken. A final order will be made in the private law proceedings.
49.    Such further judicial involvement as may be necessary will arise within the public law process.
50.    In the aftermath of judgment, there were a number of very pleasing and, from my perspective, extremely surprising developments. B whose facial expressions during judgment had alerted me to the likelihood that she accepted much of what I was saying, indicated she was indeed in agreement with my judgment. That led to similarly positive reactions from both parents. After I left court, so I was later told, the three adults hugged and apologised to each other. They agreed to sit down that afternoon to discuss 'next steps' with the social work professionals. That they did for over an hour. They discussed together how they would try to work together for D's sake. All the adults agreed to draw a line under the past and move forward.
51.    During the following week, there was a meeting between the allocated social worker, the parents, B and D. There were detailed discussions about every aspect of the local authority's plans. Appointments were made. Afterwards the NYAS case worker met with the parents, B and D to ensure that D in particular understood her parents' agreement to working together.
52.    Whereas during the hearing there had been provisional plans for D to meet with me so as to better understand why a judge had been involved in making decisions about her and for answers to be given to any questions she may have had, no such arrangement was considered necessary. All involved believed D had a good understanding of what would be happening. There was no need for her to meet with me.
With the benefit of hindsight
53.    It is often relatively straightforward to be wise with the benefit of hindsight. But this case exemplifies how important, even crucial, it is for the court to hear evidence in those private law disputes which show signs of being impervious to very early compromise. The process of describing the difficulties of itself, for those most intimately involved, can be immensely cathartic.
54.    The court can only make informed child arrangements orders when there is a full understanding of why relationships between parents have faltered. Trying to impose what may seem like common sense proposals, against the wishes of one parent and without permitting each of them the opportunity for a proper hearing may impede rather than expedite progress. A sticking plaster over a gaping and infected wound would never be an adequate treatment plan.
55.    Where, as here, ill feeling and mistrust have persisted for years the parents may come to believe – with some justification – that their litigation problems will never end. Almost always, the impact upon their child / children will be profoundly damaging. Ensuring early and appropriately child centred finality must be a priority in every private law case.
56.    The judgment, as the litigation end point, may open the way to reconciliation and a desire to cooperate in a way that did not seem remotely possible prior to the hearing.