Category: Children

Sometimes one comes across cases that are quite different, or that have an element about them that is quite different, from most other cases one normally comes across. The recent High Court case P v O is one such case.

The remarkable feature of P v O was highlighted by Mr Justice Williams in the second paragraph of his judgment:

“This is a case which when it first entered my list and I looked at the case number (FD00P00001) I thought there must be some mistake because that case reference dates back to the year 2000, now some nineteen years ago. But, no, it was not. It related then to a girl called S, who was born on 18 April 1997 and so who is twenty-one now and will be twenty-two in April of this year. Litigation concerning her has been going on, on and off, in this country and in Australia for most of her life, I think, including her father being imprisoned in Australia for, I think, two charges of either making threats to kill or conspiracy to kill the mother.”

So we have a case which goes back nearly twenty years, and relates to a child who is now several years into her adulthood. What can there be left to argue about?

A clue to the answer lies in the last sentence of the above quote. In April 2015 the High Court made a non-molestation order which prohibited the father from communicating or making contact with the mother or S by letter, telephone, Skype, text message, e-mail, any means of electronic communication or through any social networking sites, including Facebook, save through the offices of the mother’s solicitors. Unusually, the order was not time limited, because of the highly exceptional circumstances of the case.

So to this judgment. In October last year the father applied to vary the terms of the order to allow him to communicate with S via the police force in Australia, with the intention of seeing whether S wished to communicate with or contact him.

The application was heard by Mr Justice Williams in the High Court. As he explained, the situation was further complicated by the fact that in May 2016 Bexley Magistrates’ Court made a ‘violent offender order’, which prevented the father or an agent acting on his behalf from contacting nine named individuals, including the mother and S. The violent offender order recorded that the father:

“is a qualifying offender because he has been convicted of the incitement to murder of the mother; and, whilst awaiting sentence, further conspired with others again to have her killed; and has acted in such a way that there is reasonable cause to believe it is necessary for the order to be made on the ground that the mother now lives in fear of her life and her family and friends have been subjected to threats; and she has now been placed under protective services to threats worldwide to protect her identity.”

Accordingly, as Mr Justice Williams pointed out to the father, an amendment to the non-molestation order would not help him, as he would still be bound by the violent offender order, which prevented him from having any contact at all with S. The father has apparently applied to have the violent offender order varied as well.

Unsurprisingly, both the mother and S opposed the father’s application, S making it clear that she wished to have nothing to do with her father at the present time. Mr Justice Williams accepted this.

Accordingly, Mr Justice Williams found that there was no basis upon which to vary the order. In any event, the order of course contained a clear mechanism by which the father could contact S, i.e. through the mother’s solicitors. The father’s application was therefore dismissed.

Now, there is nothing in the judgment to indicate that the father’s true motive for making the application was other than as he stated. However, in a case with such a serious history, it is not difficult to imagine that such an application would in reality be nothing more than another attempt to harass the daughter and/or the mother. In such circumstances I’m sure that the court would be very wary indeed about acceding to such an application, without the agreement of the person or persons that the order was designed to protect.

You can read the full judgment here.

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We all know that the popular media can get things wrong when it reports on legal cases, misunderstanding why the court has made the decision it has. But sometimes it is not so much that the media gets it wrong, more that the media misses the real point of the case.

So it was with the recent child abduction case A (A Child) (Hague Abduction; Art 13(B): Protective Measures). The case was referred to by a certain national newspaper, under the headline: “Mum who thought daughter would have better life in UK is ordered to go back to Latvia”. As that headline indicates, the report suggested that the mother brought her daughter to England simply because she thought her daughter would have a better life here, and told us that Mr Justice Williams, hearing the case, decided that decisions relating to the child’s future should be made by the Latvian courts. Accordingly, he ordered the mother to return the child to Latvia.

In fact, the crucial issue in the case related to a point only touched upon by the newspaper report: the mother’s allegation that she had been subjected to domestic abuse by the father.

The relevant facts of the case were as follows. The mother, father and child (who was born in December 2014) are all of Latvian origin. The mother brought the child to the United Kingdom in the summer/early autumn of 2018, without the agreement of the father, and had been living here ever since with her mother.

The father made an application for the child’s summary return to Latvia, pursuant to the Hague Convention on Child Abduction. The mother raised a defence under Article 13(b) of the Convention: that there was a grave risk that her return would expose the child to physical or psychological harm, or otherwise place the child in an intolerable situation. The mother alleged that the father had subjected her to domestic abuse, both of a physical and coercive/controlling nature.

The father denied the mother’s allegations, and offered the court certain ‘protective measures’, to ensure that the mother and child would be safe upon their return to Latvia. These included the following undertakings (or promises to the court):

1. Not to remove the child from the mother’s care, pending a hearing in the Latvian courts.
2. To initiate proceedings in the Latvian courts so that if the mother and child returned, there would be a hearing before a judge who would be able to discern what the arrangements should be for the child,
3. Not assault, harass, threaten, interfere or molest the mother, whether by himself or any third party.
4. To vacate the property where he and the mother had lived, and allow the mother and child to reside there until there was a hearing in the Latvian courts.

Mr Justice Williams considered the evidence of the mother and father. He did not make a determination as to whether the mother’s allegations were true, but found that if they were they would amount to domestic abuse at a relatively high level. Accordingly, taking the mother’s allegations at their highest, as he had to do, the Article 13(b) ‘threshold’ was certainly met.

The question, then, was whether the protective measures offered by the father were sufficient to address the identified risk. Mr Justice Williams found that they were: the measures would provide the mother with the necessary protection, and could be registered in the Latvian courts, so that they were enforceable there. In practice, that meant that the mother could not establish her Article 13(b) defence, and accordingly Mr Justice Williams ordered the return of the child to Latvia.

Going back to that newspaper headline, it was true that the mother had said that she thought that the child would have a better life in this country. However, as we have seen, the real issue in the case was not where it would be best for the child to live (that will be a decision for the Latvian court, if the mother makes an application there to remove the child to this country), but whether it would be safe for the child to return to Latvia.

You can read the full judgment here.

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One of the very worst things a parent can do is to try to prevent the other parent from having a relationship with their child by falsely manufacturing allegations against that parent. Sadly, this is a scenario that happens all too frequently, as any family lawyer will testify.

The recent case Re ABCDEF (Fact Finding: Honour Based Violence) is a clear example, which tragically led to a child having no contact with his father for more than half of his life. Thankfully, the allegations made by the mother in the case have been proved to be false, and steps can now be taken to try to repair the damage caused to the child’s life.

The facts of the case, as I understand them, were that the father was a UK citizen and the mother was Pakistani. They married in Pakistan in April 2011, and the father returned to this country the next month. A year later the mother joined him in England. In August 2013 their son, ‘D’, was born.

The family went on holiday in Pakistan in February 2015. They returned to this country in April 2015, by which time the mother was expecting another child. The mother and father attended hospital in August, for the mother to have her first scan. It became clear from that scan and the dates of expected delivery, and therefore the date of conception, that the father knew he could not be the biological father of the child (the mother had had sexual intercourse with another man whilst in Pakistan).

After this, the mother remained living with the father in the family home for two months, before she left without telling the father, taking D with her. The father has had no contact with D since. The mother initially stayed with a friend, but had to leave after three weeks. She then contacted the police and made allegations of domestic abuse against the father, as a result of which she was placed in a refuge. She gave birth to her second child in the following month. She named her husband as the father, but subsequent DNA testing confirmed that he was not the father.

In February 2016 the father issued an application to spend time with his son. The mother responded to the application by making various allegations of honour-based violence against the father, including that her marriage to the father was a forced marriage, that she was treated like a prisoner in the family home, that the father and his family threatened to have her deported to Pakistan, and that the father and his family made threats to kill her.

The matter was eventually listed for a fact-finding hearing before Mr Justice Keehan. It did not go well for the mother. Mr Justice Keehan found her to be “a most unsatisfactory witness”, and found that she “lied serially”, including to the police and the court.

“In the course of her evidence,” he said, “it became abundantly clear that there was no truth whatsoever in her allegations.” It had not been a forced marriage, she was not a prisoner in her home, and any threats that had been made against her did not come from the father (her brother may have made ‘honour-based’ threats to kill her). And as for an allegation that the father gave her the ‘cold-shoulder’ and that he was not warm towards her, that was entirely understandable in the circumstances. He said:

“In the circumstances that I have described, I am entirely satisfied that the mother made a false case and false allegations against the father. There is no truth whatsoever in any of the allegations that the mother has made. The father does not pose any adverse risk of harm to the mother: still less is she at risk of honour-based violence from him. His approach to her actions has been measured. It follows that, in my judgment, there is absolutely no reason why the father and [D] should not, as soon as ever possible, have the opportunity to resume their relationship. It is, in my judgment, appalling that this little boy and this father have not seen each other for some three and a half years solely because of the malicious conduct, as I find it to be, of the mother.”

And he concluded in a similar vein:

“All the allegations made against the father by the mother are dismissed. None of them are true. This mother has wrongly and maliciously sought to exclude the father from Child D’s life. There is no reason why the child and the father should not now have the opportunity to re-establish their warm and loving relationship and that the father has and plays an important and full role in Child D’s life which will be to the inestimable benefit of Child D. It is to be regretted deeply that the mother’s actions have resulted in Child D and the father not having any contact whatsoever for three and a half years”

Obviously, it is now the job of the court to see that the father/child relationship is re-established as quickly as possible.

You can read the full judgment here.

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Often in proceedings relating to arrangements for children following parental separation one party will make allegations against the other that are so serious that they could have a crucial bearing upon the outcome of the case. Obviously, the court must make findings in relation to those allegations, and it often does so at a ‘fact-finding’ hearing.

As we will see in a moment, it is very difficult to overturn the findings of the court, and it is therefore essential that each party put their case as well as possible at the fact-finding hearing. This makes me wonder just how parents manage when they don’t have the benefit of legal representation –  one can imagine many cases turning out quite differently than they would have done had representation been available (although I should point out that legal aid, and therefore legal representation, should be available if the allegations involve domestic abuse).

None of which is intended to be any sort of criticism of the mother or her legal team in the case M v F (Appeal : Fact Finding), which is the subject of this post – I mention the case merely, as the title of this post states, to indicate the difficulty that parties face if the court’s findings go against them.

Now there was a lot going on in M v F, in particular regarding the details of the allegations, and I don’t need to go into those details for the purpose of this post (and in any event, to do so would make this post unmanageably long). Instead, I will take the unusual (for me) course of concentrating on the applicable law, rather than on the facts or findings of the case itself.

Basically the case concerned cross-applications by the father for a child arrangements order, and by the mother for a non-molestation order. The mother made various allegations against the father, including that he had used serious violence against her, that he had used controlling and coercive and abusive behaviour, and that he had used force against the child. The father denied the allegations.

A fact-finding hearing took place. Essentially the court found most of the allegations unproved. In particular the court found that the father did not pose any direct risk of physical harm to the child, or any psychological risk to the mother. The mother applied for permission to appeal against the findings.

The mother’s application went before Mr Justice Williams in the High Court. He set out the law on appeals against findings of fact, including the following points:

1. Permission to appeal may be given only where the court considers that the appeal would have a real prospect of success, or there is some other compelling reason why the appeal should be heard. (Incidentally, in the report it states that Mr Justice Williams used the word ‘and’, instead of ‘or’. If so, that is, with respect, incorrect.)
2. In the absence of some other identifiable error, such as a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified.
3. Where a question of fact has been tried by a judge, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge’s conclusion.
4. The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence.

As will be seen, this sets a high bar for the appellant. In particular, the law recognises the advantage that the original judge had in hearing the evidence first-hand – the appellate court can only make its decision based upon the paper, or printed, evidence, including the transcript of the fact-finding hearing. And look at the words I have highlighted in paragraph 2 above. It doesn’t matter if the judge hearing the appeal may have made different findings: they should only interfere if the original findings cannot reasonably be explained or justified.

Back to the case itself, Mr Justice Williams did not consider that any of the mother’s grounds of appeal had a realistic prospect of success in demonstrating either that the original findings were wrong, or that they were unjust by reason of a procedural irregularity. Accordingly, he refused the mother permission to appeal.

You can read a full report of the judgment here.

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VB v JD & Others is the latest in a never-ending sad litany of cases I have read over the years involving almost ceaseless litigation between parents over arrangements for their children. Of course, that is not to say that the parents are always the sole cause of that continued litigation – there may also be other factors, not least failures of the system to bring it to an earlier conclusion. But that does not make the cases any less sad.

VB v JD & Others concerned a mother’s appeal against an order stopping all direct contact with her 7½ year old daughter, ‘A’. The background to the case was that the parents separated in 2013, since when we are told that litigation between the parties has continued “almost without cease”. “The chronology of court hearings makes desperate reading.” Said Mr Justice Cohen, who heard the appeal. He went on: “The parents’ relationship with each other is non-existent.”

Initially the parents shared the care of A. The critical moment in the case, however, occurred in 2015 when the mother and A’s half-sister, ‘B’, alleged that the father had sexually abused B. B is the daughter of the mother and her former partner, and is now aged 17. The allegations were considered by the court in April 2015, when the district judge concluded:

“In the light of the clear view I have formed about B’s evidence, it must follow that I dismiss the allegations against the father. I am not able to say that nothing untoward happened. It is simply that the mother has wholly failed to discharge the burden of proving what she alleges.”

He also made this important observation:

“It seems to me to be a reasonable inference to draw that this mother appears determined, at any cost, to ensure that A has no contact or relationship with the father.”

At a further hearing in December 2015 the court directed that A should live with her father and stepmother. Since then, A has neither lived with her mother nor had staying contact, and all contact has been supervised.

For the sake of brevity I will now skip ahead to May 2017. In that month the father issued an application seeking a prohibited steps order against the mother and B, and for variation of the most recent child arrangements order. The application was prompted by the actions of the mother and, in particular, B, who had contacted Children’s Services, the police and A’s school, expressing concerns about A living with her father, who B alleged had sexually and physically abused her. These incidents continued until June 2017. Meanwhile, the mother continued to have contact with A without incident, until the father’s application was determined in February 2018.

The determination of the court was that the mother should have no direct contact with A. The essential reason for this was that the judge considered that it was the best way to protect A from the effects of the actions of her mother and B. The court also made an order prohibiting any further applications in relation to A for a period of three years. The mother appealed.

Mr Justice Cohen allowed the appeal. His reasons included:

1. That the judge had not considered the possibility of there being very limited, as opposed to no, direct contact, for example two or three times a year.
2. That whilst the events that led up to the father’s application were “disgraceful”, they were all outside contact and stopping contact would not, in itself, mean that those events do not recur.
3. That to remove the mother from the child’s physical presence for three years, a child then aged 6, so half the child’s lifetime, is a very long time (and therefore not a step to be taken without very good reason).

In addition to the above, Mr Justice Cohen felt that in circumstances where contact itself was going well and enjoyed by the child, greater thought needed to be given to the instruction of a child psychiatrist, before coming to a decision. In short, he said: “To terminate a child’s relationship with the mother and sister is very draconian and it seems to me that this was a case where all available alternatives had not been fully explored.”

Accordingly, the appeal was allowed and the case was remitted back to the court below for further consideration, although Mr Justice Cohen did have this warning for the mother and B:

“I do not know what the outcome of this case will be, but I make it clear that I find it hard to envisage contact for the foreseeable future occurring, if it does at all, with anything like the frequency that it has in the past. The mother and B have to prove themselves. Further complaints to the Social Services or police, whether done personally or through the agency of others, are, if unjustified, likely to lead to a longer cessation of any contact at all.”

You can read the full judgment here.

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Most months I briefly mention here the latest monthly statistics from Cafcass for care applications and private law demand. I did so last Friday. As regular readers may have noticed, the figures for private law demand have been heading inexorably upwards. I thought it might be time to have a closer look at those figures, and speculate as to what may be behind the rise.

Please note at the outset that I use the word ‘speculate’. I do so on purpose. I fully acknowledge that any thoughts I may have as to what is behind the figures are formulated on the basis of my own limited knowledge, but I simply do not have the time or resources to make a detailed investigation. Still, I have been following closely what has been happening in the family justice system for quite a few years now, and so hopefully I have something useful to add to the debate.

Before I proceed I should set out what is meant by ‘private law demand’. This is explained by Cafcass as follows:

“Private law demand is generally used to refer to applications made following a divorce or separation about the arrangements for children, such as where a child will live or with whom a child will spend time.”

Cafcass goes on to explain exactly what the figures mean:

“In private law the unit of measurement is a case (note a case can involve multiple children and multiple application types). These are counted upon receipt of the application from the court and entry into the [Cafcass] database.”

To go into just a little more detail for the benefit of those who don’t know, this does not mean that every private law (i.e. not made by a local authority) court application relating to arrangements for children (including for prohibited steps and specific issue orders) is included as soon as the application is made. Only when the court has considered the case and decided that a court welfare officer’s report is required is the application referred to Cafcass. Admittedly, this does include most applications, but some, particularly simple cases, or cases where the parents are agreed, or are close to agreement, will not be referred to Cafcass. For example, in the third quarter of 2018 (the last full quarter for which family court statistics have been published by the Ministry of Justice) the family courts received 13,444 private law children applications, whereas during that period only 11,411 applications were received by Cafcass (yes, I know that some of the applications may have been issued before that quarter, but you take my point – hopefully!). In short, a Cafcass case is likely to be a case that is contested by the parents, at least at the outset.

OK, so what do the statistics from Cafcass say? Well, I won’t go into all of the details (which you can find at the link below), but essentially private law demand has been increasing each year since 2013, the year that legal aid was abolished for most private law matters (more of which in just a moment). Thus between April 2014 and March 2015 Cafcass received a total of 34,119 new private law cases, increasing to 37,415 the next year, 40,536 the year after that and 41,844 in the year to March 2018. These figures represented year-on-year increases of 10%, 8% and 3.3%.

And the increases have continued since then. For example, the latest figure, for last month, was 20.2% higher than February 2018. Cafcass say that they consider this figure to be an ‘outlier’ compared to recent years (they don’t explain why they think this), but other recent monthly figures have also been higher, albeit not usually by quite so much.

I should say at this point that the increased demand reported by Cafcass is reflected by the Ministry of Justice’s statistics, although the latter are not as recent.

Alright, so what is behind the continued rise?

I will assume in what follows that the increase is not due to any population changes, whether in numbers or demographics. Certainly, I am not aware of any such changes, and in any event they surely wouldn’t have occurred over such a short period.

I also think we can dismiss the idea that there have been more relationship breakdowns since 2013. We don’t of course have figures for breakdowns of cohabiting relationships, but the number of couples divorcing has actually decreased over recent years. Whatever, there is nothing to suggest that relationship breakdown is in the rise.

Obviously, a big factor in the rise is what I will call the ‘bounce-back’ from the downtown following the abolition of legal aid. To explain, just before legal aid was abolished there was a surge in applications, with parents trying to get their cases in while they could still get legal aid. After legal aid was abolished, there was a corresponding drop in the number of applications. Clearly, that could not continue, hence the rise in applications since.

But the duration of the increase in private law demand seems to have been far longer than could be explained simply by ‘bounce-back’. Surely, that would have run its course after a couple of years (by, say, 2016)? There seems to be another factor, or other factors, at work.

Lack of lawyers to ‘weed out’ applications, either because they are without merit or, more commonly, because the lawyers help parents settle matters without going to court, must surely be one of those factors. We know, for example, that the number of cases being referred to mediation has dropped dramatically since the abolition of legal aid, as lawyers are no longer there to refer cases to mediation (or, more accurately, to advise parties as to the existence and benefits of mediation). Without lawyers, parents are rushing off to court when perhaps they don’t need to.

Which brings me to my last point. Are parents increasingly being encouraged to go to court by non-lawyer ‘advisers’? Without the availability of lawyers parents are often having to turn to unqualified people for assistance. Could it be that those people are advising them to argue matters when they shouldn’t (either because they don’t have a good case, or simply because the matter should be capable of being agreed), and then to go to court when either they shouldn’t, or it shouldn’t be necessary?

I’m sure there are factors that I’ve missed, and that others will disagree with some or all of my points (one matter I haven’t looked at is whether there are differences in the situation in different parts of the country, something covered by the data published by Cafcass). Still, this is clearly a discussion that we need to have, as it obviously impacts upon the ability of the court to deal with cases in a timely fashion, particularly at a time when resources are scarce.

You can see the latest statistics for private law demand here (click on ‘Monthly statistics’ and/or ‘Annual summaries’ – note that this page updates every month).

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