Category: Children

Following on from my post yesterday, I now turn to the second Court of Appeal decision from early April concerning an intractable children dispute: L (A Child), which concerned an appeal by a mother against an order transferring the home of the child from that of mother and maternal grandmother in London, to that of father and the father’s new partner in Northern Ireland.

The appeal was heard by the President of the Family Division Sir Andrew McFarlane. As he explained in the first paragraph of his judgment, the appeal concerned the approach to be taken in a case which, on the judge’s finding, falls short of attracting the labels “intractable hostility” or “parental alienation” (but nevertheless could certainly be described as an “intractable dispute”).

The facts of the case were that the parents separated some six years ago, when the child was two years old. He went to live with the mother and maternal grandmother, and he had had his main home with them since that time. In words sadly very similar to those of Lord Justice Jackson in yesterday’s case, the President explained that the child has been the subject of litigation in the Family Court since 2013.

In 2016 the court made an order by consent that the child should live with his mother, but providing for regular time with his father every third weekend in England, and for substantial periods in Northern Ireland during the school holidays.

In 2017 the child gave an interview to the local police in which he made assertions which, if true, indicated a lack of sufficient sexual boundaries in the father’s home. The matter was investigated by the court and in May 2018 His Honour Judge Tolson QC dismissed the allegations upon which the mother relied and found “to a very high standard of proof” that there had been no sexual or physical abuse by the father of his son. The child had been put up to say things to the police. The allegations, however, tainted all that followed.

The father applied for a change of residence. The application was heard by HHJ Tolson, who handed down judgment on the 3^rd of December last. He noted various matters, including that Cafcass officers had outlined similar concerns since the litigation began. For example, a Cafcass officer had reported in July 2017 that they had significant concerns that the child was “caught up in a very acrimonious dispute between his parents and that inevitably he must be picking up on this.” Six months later another Cafcass officer reported that the child “described his mother entirely positively and his father entirely negatively.” Yet another Cafcass officer said that the child “was being emotionally harmed from the parental conflict”. Judge Tolson found that the mother and maternal grandmother had influenced the child against his father albeit, as indicated above, not to the degree that could be labelled “parental alienation”. He held that maintaining the placement with his mother and grandmother would not meet the child’s emotional needs and would cause him emotional harm in the future. He therefore concluded that the balance of advantage lay in a move to Northern Ireland.

The mother appealed to the Court of Appeal, arguing that the decision to transfer residence was premature, that the court had failed to ascertain the child’s wishes and feelings, and that the judge’s conclusions in respect of the balance of harm (i.e. between staying with the mother or moving to live with the father) were arguably wrong or insufficiently evidenced.

Before dealing with these three arguments the President made an important point. It has often been said that a transfer of residence is a “weapon of last resort” for the court to use when the primary carer is frustrating the wishes of the court. The President said that there was a danger in placing too much emphasis on the phrase “last resort”. He said that the test is, and must always be, based on a comprehensive analysis of the child’s welfare and a determination of where the welfare balance points in terms of outcome. Use of phrases such as “last resort” cannot and should not indicate a different or enhanced welfare test.

As to the child’s wishes and feelings, the President found that, in the circumstances of the case, the child’s Guardian had made the decision that to ask the question and to put this eight year old boy on the spot of expressing a choice would itself be emotionally harmful. Nevertheless, the Guardian had ensured that his voice had been heard “loud and clear” by the judge.

As to the arguments regarding balance of harm and prematurity of the decision, the President said that it may have been that the decision to move the child was finely balanced, but, as is well known, finely balanced welfare decisions are not susceptible to a successful appeal. It was not possible to say that the Judge was “wrong” in fixing the balance as he did in this case. The decision was not premature, as concern about the impact on the child of being at the centre of parental conflict was identified as long ago as 2013.

In short, the mother’s arguments had not been sustained. Accordingly, her appeal would be dismissed.

As I indicated at the beginning of my post yesterday, I believe that this case has useful things to say about intractable disputes between parents over arrangements for their children. It shows that the failure of a parent to address the court’s concerns can tip the balance in favour of a change of residence. And in particular it demonstrates once more that parental conflict must be cast aside, and the welfare of the child put first.

You can read the full judgment here.

The post Dealing with an intractable children dispute, Part 2 appeared first on Stowe Family Law.

In early April the Court of Appeal handed down its decision in two private law children appeals, within five days of one another. Between them, I think the two cases have useful things to say about intractable disputes between parents over arrangements for their children, in cases where ‘parental alienation’ is not an issue. I shall deal with the first case in this post, and the second case in my next post.

The first case which, as we will see in a moment, I have previously written about here, is G (Children : Intractable Dispute), which concerned an appeal by a father against the refusal of an application for orders that his two children should live with him or have contact with him, and an order preventing him from bringing any further applications relating to the children for three years, without the permission of the court.

The facts of the case were that the parents lived together for some years, separating in May 2013. They had two children, both girls, now aged 11 and 8. The girls live with their mother. Since the separation there has been uninterrupted litigation between the parents about the children, and other matters (how often do we hear this?).

I couldn’t possibly detail all of that litigation (as far as it relates to the children) here, but these are the main points:

1. In August 2014 a fact-finding hearing took place at which the judge made adverse findings against the father, relying in part upon two reports from a social worker, which supported the mother’s allegations of domestic abuse against the father. As I explained here, in 2015 the father succeeded in appealing against the findings, after the social worker was found to be biased.
2. A ‘final’ hearing took place in early 2017. The mother wanted the court to make a final order, but the father sought a further psychological assessment of the older child, who indicated she did not wish to see her father. The judge preferred the father’s case, and ordered the assessment, which was extended to the whole family.
3. A ‘final’ final hearing took place in April 2018, with judgment being handed down in July. The judge made a number of damning findings against the father, including that he was openly hostile towards the mother, that he was hostile towards the professionals involved in the case, that he was “the main if not principal source of conflict”, that he was unable to prioritise the children’s welfare above his own wishes, and that he had “completely lost sight of the welfare of the children”. In consequence of these findings, the judge refused the father’s application for orders that the children should live with him or have contact with him, and prevented him from bringing further applications without permission for three years.
4. The father had had no proper direct contact with the older child since April 2014, and no contact with the younger child since September 2016.

The father appealed to the Court of Appeal, claiming, amongst other things, that the proceedings were procedurally unfair and infringed the children and father’s right to respect for private and family life under Article 8 of the European Convention for the Protection of Human Rights, by virtue either of the absence of contact or the length of the proceedings. It was also claimed that the judge had not pursued all reasonable routes available to him.

Giving the leading judgment of the Court of Appeal Lord Justice Peter Jackson found that there had been no breach of the human rights of the children or the father. Although the length of the proceedings was a matter of concern, that did not of itself amount to a rights infringement. “What is more relevant”, he said, “is that since 2015 the Judge has diligently and sympathetically attempted to revive the father’s relationship with his children but has been forestalled by the mother’s earlier lack of support for contact and by the father’s increasingly extreme attitude.” He went on:

“The father’s self-description as “free of findings, risks or concerns throughout” confirms that he currently has little if any insight into his own difficulties. As time has gone on, his self-defeating stance has become the main obstacle to progress. To be clear, Art. 8 rights are not reserved for irreproachable parents, but a parent who is only willing to participate in the delicate work of family reconstruction on his own uncompromising terms cannot hold others responsible when the work does not succeed.”

As to the routes available to the judge, Lord Justice Jackson said that there were only really two options:

“…the orders made by the Judge or the order sought by the father for the children to live with him, notwithstanding what the Judge described as the lack of any coherent planning for matters such as accommodation. Of these options, only one was realistic in the absence of a finding of severe parental alienation and the Judge’s choice was all but inevitable.”

Accordingly, the appeal was dismissed.

Whilst the father in this case clearly had reason to be aggrieved by how the ‘system’ had treated him, the case demonstrates the futility of continued hostility towards that system, and the other party. If you want the best outcome, then you must put aside any hatred of the other parent, cooperate fully with the ‘system’ and, above all, ensure that you put the welfare of the children above your own wishes.

You can read the full judgment here.

The post Dealing with an intractable children dispute, Part 1 appeared first on Stowe Family Law.

In child abduction cases we have often seen the ‘abducting’ parent raise the ‘grave risk of harm’ defence to an application by the other parent for the summary return of the child to its ‘home’ country. To put that in a little more detail, the abducting parent removes the child from its home country without the other parent’s consent, the other parent makes an application under the Hague Convention on Child Abduction for the summary return of the child, and the abducting parent raises the ‘defence’ under Article 13(b) of the Convention, namely that to order the summary return would result in a grave risk of exposure to physical or psychological harm, or otherwise place the child in an intolerable situation.

Obviously, the allegations relied upon to raise the defence can vary tremendously. In the recent case MB v TB one of the allegations relied upon by the mother was slightly unusual: the father’s relentless and oppressive use of the legal system in the ‘home’ country (in the context of his greater means) to obstruct the mother’s care of the child in that jurisdiction. The case suggests that, for most countries at least, it is likely to be difficult to persuade the English court that such an allegation will make out the defence.

The facts of the case were as follows. Both parents are Israeli citizens.  They have one child, ‘L’, who was born in London in 2010. She is an Israeli citizen and a British national. The parties’ relationship broke down in 2012, whilst the mother was residing in Israel, and the parents separated. The father returned to reside permanently in Israel shortly after the mother. L therefore resided in Israel with the mother, from 2012.

After the separation the parents engaged in family court proceedings in Israel. An agreement in relation to custody issues, divorce and ancillary financial issues was endorsed by the court in October 2013, which provided for L to have regular contact with the father. Notwithstanding this, the mother alleged that the father had engaged in a campaign to alienate L from her, and between 2013 and 2017 there was extensive litigation between the parties in the Israeli courts. As Mr Justice MacDonald, hearing the case in the High Court, explained:

“…the mother submits that the course of that litigation was dictated by an intention on the part of the father to use the legal system in a relentless and oppressive effort to obstruct her care of L in that jurisdiction.”

I won’t go into the details of the litigation (you can find a summary in paragraph 22 of the judgment), but there were certainly a remarkable number of court applications issued by both parties between 2013 and 2017: twenty-four by the mother and thirty-six by the father. The parents finally agreed (or so it seemed at the time) to cease all litigation, in November 2017.

On the 6^th of November 2018 the mother abducted L to this country. She accepted that the abduction was unlawful. The father applied under the Convention for the summary return of L to Israel, and the mother raised her Article 13 ‘defence’, as mentioned above. The defence also alleged that L was being alienated from her by the father and his new wife, such that there was a risk that L would no longer wish to live with the mother.

Mr Justice MacDonald did not find the defence made out. There was no evidence of alienation. As to the oppressive litigation allegation, it was true both that there had been a substantial amount of litigation between the parents, and that the father was in a better financial position than the mother to sustain that litigation. It was also true that there was likely to be further litigation if L was returned to Israel. However, the English court could be confident that the courts in Israel would take the steps necessary to ensure that any further litigation between her parents, however undesirably protracted, would not be allowed to lead to a grave risk of exposure to physical or psychological harm or otherwise place L in an intolerable situation. Further, the litigation to date had not inflicted appreciable emotional harm on L. There was also no evidence, as the mother asserted, that her mental health would be so affected by further litigation as to disable her from caring for L.

Accordingly, Mr Justice MacDonald ordered that L should be summarily returned to Israel. He concluded his judgment with this familiar appeal to the parents:

“What is clear beyond peradventure is that it is well past time for these parents to stop litigating and start cooperating with regard to L’s welfare. Whilst I am satisfied that L has, happily, the resilience to meet the challenges presented by her parents seeming inability at times to discharge their collective responsibility as parents without resorting to squabbling and bickering between themselves in the courts, L should not have to rely on that resilience to protect her from the emotional consequences of her parents’ inability to collaborate in her best interests. Rather, L is entitled to expect both her parents to prioritise her best interests by co-operating in respect of her welfare. Whilst November 2017 appears now to have represented a false dawn in this regard, it is to be hoped that the parents can now, finally, start putting L first.”

Let us hope that they do.

You can read the full judgment here.

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The real lesson that the figure for couples needing the court to sort out arrangements for their children teaches us.

As I have said here many times before, I practised family law for about twenty-five years, during which time I dealt with thousands of cases. With that experience I thought I had acquired a reasonably good understanding of family breakdown generally, and the problems that arise from it. In particular I believed I had obtained a fairly accurate impression of what proportion of separating couples were unable to resolve their problems without recourse to the courts.

My impression was that there were broadly three categories: those couples who could resolve their problems without needing a lawyer, those couples who were able to resolve their problems with the assistance of a lawyer or a mediator, and those couples who required to court to resolve their problems.  Obviously, I had nothing to do with the first category, so I could only guess as to their numbers. As to the second category, it seemed to me that this comprised the majority of my clients, and those who had to go to court comprised the minority. And of those who had to go to court the majority were able to settle without having to rely upon the court to impose a decision at the final hearing.

In short, it seemed to me that the number of couples who relied upon the court to resolve their problems was relatively small. Accordingly, when I first heard it mentioned some years ago (I don’t recall where) that only about 10% of separating couples go to court to resolve children disputes, that seemed to confirm my impression. That ‘10% rule’ has often since been repeated, to the point that it became generally accepted, including by me. However, new thinking on the subject has thrown my impression into doubt.

I know that many have challenged my impression in the past, but I was first really alerted to this new thinking in a speech that the new President of the Family Division Sir Andrew McFarlane gave to the Resolution Conference last month, and that has since been taken up by a post that the fathers’ rights group Families Need Fathers (‘FNF’) had published here last week.

Sir Andrew referred to work done on the subject by Teresa Williams, the Director of Strategy at CAFCASS. He said that figures she had compiled indicated “that around 38% of couples need to go to court to resolve disagreements over how they should care for their child post-separation”, which he called “a far cry from the previous comfortable urban myth based on a figure of 10%.” He went on to say that this new figure:

“…indicates a major societal problem, with nearly 40% of parents unable to sort out the arrangements for their own child without the need [to] apply for a court order.”

Hmm. 40%? That does seem awfully high. As I said above, I always subscribed to the ‘10% rule’, for the simple reason that, based upon my twenty-five odd years’ experience practising as a family lawyer, it ‘seemed about right’. I am prepared to accept that the 10% figure may actually be on the low side, but I’m quite sure that it was not the case that four out of ten of my clients with children had to go to court to sort out arrangements for them (and that is ignoring the number of couples who never needed to consult a lawyer anyway).

Of course, there is a major difference between how things are now and how they were when I was practising: the lack of legal aid. When I was practising, legal aid was available to all, which meant that all couples might have their problems resolved by agreement with the benefit of a lawyer, or a mediator (cases resolved by mediation are now about half the number they were before legal aid was abolished).

Anyway, whatever we think of it, it seems we must now accept the 40% figure as the new gospel. But why does all of this matter?

Well, in a sense it doesn’t. It doesn’t matter to the individual couple whether they are part of 10% or part of 40% of couples who need the court to sort things out for them. And you could say that it doesn’t matter to the court system, which is already (just) dealing with exactly the amount of couples that require its services.

However, both the President and FNF point to what the new figure says about the scale of the problem of parents unable to sort out arrangements for their children themselves, and the need to find new ways of dealing with the problem. That may be so, but if the figure is correct then that is an appalling indictment of parenting in this country. Surely, the vast majority (more like 90%) of parents should be quite capable on their own of working out what was really best for their children? Surely, therefore, the real lesson all of this teaches us is the need to educate regarding how parents should behave when they separate: how they should put their children first, how they should never use them as weapons in any dispute with the other parent, and that it is almost always in the best interests of children to retain as full as possible a relationship with both of their parents. Such a programme of education would I believe substantially increase the proportion of separating parents that are able to resolve their issues themselves, without recourse to the courts, or indeed outside assistance of any sort.

*With apologies to the band UB40 (at least that’s how I recall the lyric).

The post I am a one in ten. Or should that be four in ten?* appeared first on Stowe Family Law.

We have all seen cases in which one parent seeks to alienate the child against the other parent. In such cases there are a range of options open to the court to deal with the issue, but perhaps the most serious, where the child lives with the ‘alienating’ parent, is to order the transfer of the primary care of the child to the other parent. This was what happened in the recent High Court case MFS (Appeal: Transfer of Primary Care), which related to a mother’s appeal against such an order, made by His Honour Judge North, in September last year.

The interesting part of this case is, I think, not so much the appeal, as the original decision. I shall therefore concentrate on that.

The case concerned a boy, ‘MFS’, who was born in 2010. Unless I’ve missed it, the judgment doesn’t say when his parents separated, but it was clearly not long after he was born. MFS remained with his mother, but as long ago as 2012 there were court proceedings regarding his contact with his father.

The central feature of the case was the mother’s negative attitude towards the father, and how she transmitted that to the child. Independent evidence for this came primarily from a clinical psychologist, whose findings included the following:

1. That the father did not suffer from mental health problems, as the mother had suggested.
2. That the mother had persistently portrayed the father negatively, as violent, as mentally unwell, and denigrated him as the father. MFS identified with these negative and hateful feelings expressed by the mother.
3. That the mother had alienated the father as a result of her collusion with her son against the father. This constituted emotional abuse.
4. That the mother persistently saw her own distress in others: she saw psychiatric problems in the child and his father, while considering that she herself functioned well, and had no psychological problems.
5. Lastly, the clinical psychologist was concerned that the mother was preoccupied with the need to set the father aside, driven by her anxiety that she might lose the child, or that the child might prefer his father over her.

These findings (and others) were accepted by Judge North, who concluded that the mother’s behaviour was causing MFS significant emotional harm. He considered the possibility of ‘threatening’ the mother with a change of residence to the father, but felt that that would not alter the mother’s behaviour. Accordingly, he made an order that MFS should immediately move to live with his father.

The mother appealed, arguing (using the words of Mr Justice Williams, who heard the appeal) that the clinical psychologist’s report was so seriously inaccurate/unreliable/biased that it could not properly be relied upon by the judge, and that in all the circumstances the decision of the court immediately to remove the child from his single primary carer was disproportionate and wrong. Mr Justice Williams did not accept either argument: the report was not open to criticism, and the overwhelming weight of the evidence supported a change of primary carer. The change of primary carer was plainly the decision that was in this child’s best interests, and it was plainly a proportionate rather than a disproportionate order on the evidence. Mr Justice Williams concluded:

“Having conducted what I consider to have been a very detailed review of the evidence before HHJ North and his judgment with the benefit of powerful written and oral advocacy in support of the parties’ cases I have reached the clear conclusion that the appeal is without merit. Whilst it was only possible to reach this clear view after that detailed consideration it is clear that neither of the grounds of appeal had any realistic prospect of success when road tested against the evidence that the judge had available to him.”

Accordingly, the appeal was dismissed.

You can read the full judgment here. Warning: with respect to Mr Justice Williams, the transcript of the judgment appears to have some errors in it, which can make it a little hard to follow in places.

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