 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
England and Wales Family Court Decisions (other Judges) |
||
|
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> X (Fact finding Hearing: Special Measures) Judgment No.2 [2020] EWFC B76 (26 May 2020) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2020/B76.html Cite as: [2020] EWFC B76 |
||
[New search] [Printable PDF version] [Help]
(sitting remotely)
IN THE MATTER OF THE CHILDREN ACT 1989
IN THE MATTER OF THE FAMILY LAW ACT 1996
St Mary's Court, Regent's Park Road, London, N3 1BQ |
||
B e f o r e :
____________________
| M (a father) |
Applicant |
|
| - and - |
||
| P (a mother) X (a child)(by her Children's Guardian) |
Respondents |
____________________
Mr De Burgos (instructed by Direct Access Counsel) for the First Respondent
Ms Mai-Ling Savage (instructed by Hopkin Murray Beskine Solicitors) for the Second Respondent
Hearing dates: 21 May 2020
____________________
Crown Copyright ©
His Honour Judge Willans:
Introduction
Background
a) This case should be viewed in the light of the lengthy relationship between the parents which commenced when they were early teenagers and ended more than two decades later. My assessment of the evidence suggested this led the parents to be emotionally entangled to a high degree and this has contributed significantly to the problems that have arisen as the relationship began to fall apart.b) I have made no findings as to respective responsibility for the breakdown of the relationship. I recognise each blames the other for the breakdown. I am not satisfied the cause was physical DV on the part of M but I accept there were likely to have been a number of verbally aggressive confrontations, some of which would have been undoubtedly experienced by X.
c) In the fall-out of the relationship M struggled to cope and was overusing alcohol. The consequences were negative. Evidence of this is found in the two convictions but I am in little doubt it was have contributed to the disagreement and problems reported by the parties.
d) However I am also of the view that P struggled with separation and found it difficult to accept M had found a new relationship. Her position was not assisted by her use of cocaine.
e) Although the detail is unclear I am in little doubt the relationship had at times an on/off quality with reconcilliations and fallouts. On balance I accept there may have been times when M falsely stated he was no longer with K (when he was) to ease the situation from his perspective. With hindsight this was not a sensible approach to take. I find P sought to gain control by using the leverage of contact with X against M.
f) Ultimately and unsuprisingly the relationship could not be fully repaired and despite an attempt at reconciliation in 2013 it finally ended. Given the history it is likely this was surrounded by a high level of emotional upset. This was complicated by the resumption of relationship between M and K leading to the incident at school in December 2013. Flowing from this P wrongly alleged rape against M.
g) Subsequently the fact of the allegations and the proceedings in 2014 have led to an estrangement between M and X. On the facts this should not have happened but there has now been a significant period without contact. During this period P has inappropriately sought to restrict and obstruct contact between M and X in part due to her ongoing hostility to K and her perception of the role she will play in contact should it resume.
h) During this period the lack of contact has led to a most unhelpful level of antagonism to develop as evidenced by the inappropriate social messaging. This has had the effect of fortifying what are sadly the battlelines between the parties. One result has been to lead to unauthorised attempts at contact with X. In the context of the case this is perhaps unsurprising.
Real issues for determination
Legal principles
- There must be some evidence of molestation
- The applicant (or relevant child) must need protection, and
- The Court must be satisfied on the balance of probabilities that judicial intervention is required to control the behaviour which is the subject of the complaint
(1) Section 91(14) should be read in conjunction with s 1(1) which makes the welfare of the child the paramount consideration.
(2) The power to restrict applications to the court is discretionary and in the exercise of its discretion the court must weigh in the balance all the relevant circumstances.
(3) An important consideration is that to impose a restriction is a statutory intrusion into the right of a party to bring proceedings before the court and to be heard in matters affecting his/her child.
(4) The power is therefore to be used with great care and sparingly, the exception and not the rule.
(5) It is generally to be seen as a weapon of last resort in cases of repeated and unreasonable applications.
(6) In suitable circumstances (and on clear evidence), a court may impose the leave restriction in cases where the welfare of the child requires it, although there is no past history of making unreasonable applications (see also Re P (Children Act 1989, ss 22 and 26: Local Authority Compliance) [2000] 2 FLR 910, FD).
(7) In cases under para 6 above, the court will need to be satisfied first that the facts go beyond the commonly encountered need for a time to settle to a regime ordered by the court and the all too common situation where there is animosity between the adults in dispute or between the local authority and the family; and secondly that there is a serious risk that, without the imposition of the restriction, the child or the primary carers will be subject to unacceptable strain (see also Re S (Contact: Promoting Relationship with Absent Parent) [2004] 1 FLR 1279, CA). The Court of Appeal has reiterated the principle that a need for time to settle to the regime ordered is not sufficient to justify a s 91(14) order: the purpose of the order could and should have been achieved by giving the order time to work itself out: Re G (Residence: Restrictions on Further Applications) [2009] 1 FLR 894, CA.
(8) A court may impose the restriction on making applications in the absence of a request from any of the parties, subject, of course, to the rules of natural justice such as an opportunity for the parties to be heard on the point. In particular it is wrong in principle, except in exceptional circumstances, to put a litigant in person in the position, at short notice, of having to contest a s 91(14) order (Re C (Prohibition on Further Applications) [2002] 1 FLR 1136, CA).
(9) A restriction may be imposed with or without limitation of time. In Re B (Section 91(14) Order: Duration) [2004] 1 FLR 871, CA, it was said that where the mother was determined to excise the father from a child's life the court should never abandon endeavours to right the wrongs within the family dynamics. A s 91(14) order which was to last during the child's minority and was without limitation to specific applications gave the wrong message in a case in which the father had not abused the family justice system nor undermined the mother's primary care. An order which is indeterminate or is to last until a child is 16 should be an exceptional step because it is, in effect, an acknowledgement that nothing more can be done. If such an order is made the court must spell out why and what needs to be done to make a successful application in the future (Re S (Permission to Seek Relief) [2007] 1 FLR 482, CA). In S v B & Newport City Council: Re K [2007] 1 FLR 1116, FD, a special guardianship order and a s 91(14) order were made preventing the natural parents making any application for contact without limitation of time because the child's needs required that order to be made and failure to do so, in the light of the parents volatile behaviour, would impose an unacceptable strain on the carers.
(10) The degree of restriction should be proportionate to the harm it is intended to avoid. Therefore the court imposing the restriction should carefully consider the extent of the restriction to be imposed and specify, where appropriate, the type of application to be restrained and the duration of order (see also Re G (Contempt: Committal) [2003] 2 FLR 58, CA).
(11) It would be undesirable in other than the most exceptional cases to make the order ex parte.
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) his physical, emotional and educational needs;
(c) the likely effect on him of any change in his circumstances;
(d) his age, sex, background and any characteristics of his which the court considers relevant;
(e) any harm which he has suffered or is at risk of suffering;
(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
(g) the range of powers available to the court under this Act in the proceedings in question.
and bearing in mind that unless the contrary is shown it should be presumed that a child's welfare will be furthered by the involvement of their parent in their life [section 2A] although involvement means involvement of some kind and does not specify the form of such contact.
i) the welfare of the child is paramount;
ii) it is almost always in the interests of a child whose parents are separated that he or she should have contact with the parent with whom he or she is not living;
iii) there is a positive obligation on the State and therefore on the judge to take measures to promote contact, grappling with all available alternatives and taking all necessary steps that can reasonably be demanded, before abandoning hope of achieving contact;
iv) excessive weight should not be accorded to short term problems and the court should take a medium and long term view;
v) contact should be terminated only in exceptional circumstances where there are cogent reasons for doing so, as a last resort, when there is no alternative, and only if contact will be detrimental to the child's welfare.
I appreciate this case does not engage an argument as to no contact, but the issues do engage a significant restriction on the ongoing relationship between M and X and such determination does in my assessment require a clear and reasoned justification.
Analysis
Non-Molestation Order
a. There is complaint that M has been seen in the vicinity of P's home. Whilst I accept such conduct could justify an order the evidence to establish such presence is wholly vague and falls far short of the evidential standard required. In her statement P notes:
M has also been trying to ascertain where we live by sending letters to my neighbours and someone fitting his description has been seen in our general vicinity. M has harassed a number of my close immediate family who do not want his attention.[2]
As I raised with counsel: Who are the neighbours? How would they know what M looks like? When and where did this happen? Counsel accepted the difficulties with the allegation. In my assessment I could not safely make a finding on such evidence. I note I was not shown any of the suggested letters sent or any supporting evidence from the harassed family members. The allegation is far too general and vague and fails.
b. A second complaint relates to M opening an Instagram account in the name of X. This is said to be an act of molestation against which protection is required. I have seen a letter from X in which she explains this has upset her as her friends might think it is her account and correspond with it. I accept this point and recognise X may well have been upset by M's actions in creating the account. It is said by P that M was impersonating X in setting up the account. The police have been called and the child spoken to. There is a crime reference but an attachment to P's statement makes clear the Police do not see the basis on which this could be viewed as in any way criminal. This allegation is linked to a previous suggestion that M had 'hacked' P's "iCloud" account prior to the fact-finding hearing.
As above I acknowledge the upset felt by X. I agree with the guardian that this decision was not fully thought through. However, more importantly I must at least consider the context of the actions if I am to assess intent and the likelihood of repetition with a consequent need for protection. Having considered the statements it is quite clear that this action was pursuant to the suggestions of the guardian for the father to think about a mechanism under which he might be able to indirectly establish contact with X[3] ~ although I am confident the guardian did not have this action in mind.
Most importantly, I am sure M was not trying to impersonate X to mislead anyone. He used her name, I accept, as he believed it would be more memorable and therefore more likely to be successful. For my part I cannot conceive of the logic for calling the police in respect of this action. Such response was heavy handed and demonstrated an inability to reflect on the father's actions in anything other than a critical manner.
That leaves the "hacking" allegation. Reference to my fact-finding judgment[4] shows that this issue arose previously. Ironically at that time the allegation was not of hacking but of forgery with it being said that the entries were not actually from the mother's diary. During that hearing I sought clarification on the point, but sensed counsel was in difficulty as to the contradictory positions: forged and therefore not hacked or genuine and hacked. During that fact finding hearing I was not asked to make findings. Counsels' recollection (which I share) is that M indicated the details had been given to him by someone known to the mother with access to her information.
It is clear M has been able to access P's personal information, but it is unclear how this arose. It is not clear and there is no real evidence to show he has hacked her account. It is likely there has been a breach of her privacy on the part of an individual, but it is unclear by who. Perhaps more importantly there is no suggestion of extensive invasion or ongoing misconduct. In my assessment the time for evidential investigation was during the fact finding and that opportunity was not taken. I struggle during this hearing on the evidence available to make a positive finding and I can see no interaction between this historic point (dating I think to 2017) and the Instagram account.
c. Finally, P relies on M's admission to having met X on a limited number of occasions during 2017-18[5]. Reference is made to these being contrary to my judgment which in context means contrary to my understanding and finding as to events rather than any order made by me as to contact. Rather, the contact is in breach of the historic order of DJ Payne from 2014[6] which indicated direct contact should be by written agreement or order of the Court. In her most recent meeting with the Guardian X advised that these meetings had caused her 'complications, it was not what she wanted and around special occasions she walked a different route to school due to being worried about her father seeking to meet her.
Once again, I accept the basic premise of X's feelings in this regard. All the evidence tells me she has found herself in a very difficult position and she is sensitive around this issue. She has made clear this is not what she wants and M (whether he likes it or not) has heard her views. Importantly, despite knowing where X lived, and I understand her school, there is no evidence or suggestion as to M continuing such behaviour during the proceedings over the last two years. Having read what X has said it seems clear such behaviour would be counter-productive and particularly were I to accede to a mechanism for X to freely seek out contact.
Plainly, M was not wholly honest with me in this regard at the fact finding. But, reference to my judgment suggests I was conscious there may well have been other contacts with X, a situation that I found unsurprising on the facts of the case[7]. However, on my appraisal these historic events do not justify the making of an order as sought. That being said such conduct were it to continue could be grounds for a future application and so I would caution M to ensure he acts within the constraints of any order made by me pursuant to this judgment.
Section 91(14) Order
Contact: Spending time with X
a. X's guardian considers it is important for M to 'commit to something, to enable X to choose this relationship in future'[9]. Her guardian suggests the structuring of two occasions each year on which date M would make himself available at a given place (e.g. a coffee shop) enabling X to join him if she so wishes. In addition, there should be indirect contact and, having regard to previous obstruction of such contact, this should be by way of a designated email address which would permit M to provide X with updating information[10] and would be hoped to be a basis upon which the relationship might develop. Further to this indirect contact should additionally be sent by way of cards, letters and small gifts at birthday and other special occasions to be facilitated by a third party. When asked to consider the making of an order for direct contact she responded:
"…given [X's] clear and consistently expressed wishes and feelings, it is my view that this would be counter-productive, because it involves over-riding her autonomy entirely. She would still have to return home each time to a mother who is 'unsettled' about [M] and given [X's] age and her sensitive and compassionate nature she may feel responsible for how it makes her mother feel but would be powerless to stop it. It is likely this would lead to feelings of anger and resentment towards [M]…and this is not conducive to rebuilding a positive relationship with her father."[11]
As to contact by way of social media the guardian was of the view the Court had to be both realistic and conscious of the limitations on its power to restrict contact and did not object to there being contact by way of a social media account set up by her father so long as this did not fall into the problems shown by the Instagram account. The guardian was also clear that she opposed an order for 'no contact' as much as she did for enforced direct contact. This was not what X expressed herself as wanting. The guardian's schedule of proposals are found at §8 of her position document.
b. P sets out her position in a helpful position document[12] in which she outlines that she agrees there should be no order for direct contact but accepts indirect contact through cards, letters and small gifts on the basis that this was on four occasions per year (birthday, Christmas, Easter and one occasion in autumn) via a third party, with her sister being suggested. She disagrees with the suggestion of additional email indirect contact arguing that this would likely be misused. Finally, she opposes the suggestion of the twice-yearly invitations to meet as suggested by the guardian as this would be emotionally damaging for X playing on her sense of guilt. The logic of the non-molestation order and the arguments in support of the same suggest P also objects to contact beyond that specifically regulated within the order (i.e. social media).
c. M appears to have adapted his position in the light of the guardian's response to his questions. Previously I had understood him to be arguing for the Court to take a more interventionist approach on the basis that one could not safely distinguish X's expressed views from her mother's views and so the Court had to act to ensure X's true needs were met. However, in his final statement and submissions he notes:
"I am mindful of the wishes and feelings that [X] has expressed throughout this process. I have misgivings about their honesty and the environment of hostility and distress in which they have been formed, but I have listened to what she has to say and respect them. My experience of my daughter…and that of those who have been in contact with her of late, is that she is an intelligent and articulate girl capable of expressing what she wishes. For this reason, my proposal is to empower [X] with the choice to resume contact or not. I am willing and able to shoulder the responsibility of providing an environment for contact to take place, should she wish to resume contact on her terms."[13]
From this perspective M supports the meeting invitation approach suggested by the guardian and the mixed use of indirect solid and virtual communications although he citicises the limits suggested for such contact (e.g. monthly for emails) as being overly and unnecessarily restrictive. That being said I understood him within submissions to be somewhat dismissive himself as to the prospects of indirect 'solid' (letters etc.) contact getting to X. I understand his position to be that there should not be restrictions in the sense that X should be free to engage in a more significant level of communication with him should she wish (to include direct contact) and that this potential should permit him to respond and not to be contained by the parameters of an order.
Within his statement M sets out a series of features which he considers are required to assist in fostering the future relationship between X and him[14].
Welfare Assessment
There is no doubt that such a relationship [between X and M] would have numerous benefits to offer [X], materially and emotionally….[X] is not, however suffering significant harm without this relationship,,,[T]hat is not to say that the lack of this relationship will not impact throughout [X's] life, including in respect of her own ability to form relationships."[16]
Elsewhere the guardian observes that X is a child:
…contending with enormous and unseen pressures. Her consistent narrative about the complications, disruptions and hassle that would ensue were she to embark on repairing the relationship with her father leads me to consider that the 'status-quo' that she has come to experience has been hard fought'.[17]
Conclusions
- Should indirect letters be limited to 4 times per year
- Who should facilitate the communications
- Should there be additional email facilitated indirect contact
- If so how often
- Should there be any restrictions on social media-based contact?
- Should there be a regular invite to direct contact?
- Should I adopt any / some / all of M's proposed suggestions around contact.
HHJ Willans
Annex to Judgment: Letter to X
Dear Amelie
I am the Judge who has been considering your case and I have been asked to make the decision which is best for you. In coming to my decision I have heard from both your mum and dad, but as you know I have also heard from your own guardian. She has been quite clear about what you want in terms of contact and I have listened to your views and done my best to reflect them in my decision. I have also been told about the effort you are making at school and I was impressed to hear about your recent Gold Merit award which is a real achievement in keeping focused when there are so many distractions not being at school.
Having had responsibility for your case in the last couple of years I think there are three things you should know:
Having listened carefully I want you to have some control over what is best for you. You are nearly 15 and with this comes greater personal responsibility and the freedom to make more decisions for yourself. I am not going to treat you like a child and make orders for you to go for contact. Instead I am going to leave the door open for contact when you are ready. I have agreed you should get occasional letters from your dad but I have also asked your guardian to provide you with an email contact to which your dad and you can send emails for each other to read (when you want to either simply read what your dad has sent or reply if this is what you want) together with details of a social media site at which you can link up with your dad at your speed. I heard about the Instagram account and I agree your dad made a mistake but I understand why he made that mistake and I think he now knows he approached things the wrong way.
Finally, I am going to put in place a system under which your dad will be ready to meet with you on two occasions a year if you want to turn up to see him. I would like you to think about this hard. Both your parents are very important for you and you will never be able to get back lost time. So do what is best for you but I hope you make the right decisions and I hope you are happy with your choices.
Best wishes
Judge Willans
Note 1 Re X (Fact finding Hearing: Special Measure) [2019] EWFC B88: Bailii [Back] Note 4 §39(d) and (e) at B54-5 [Back] Note 5 D9 & D17: with M recording 5 meetings and X remembering 2 or 3 [Back] Note 10 On a monthly basis – see position document [Back]