In the Matter of D (Children)

This case concerns what family lawyers call “intractable contact”. Before I briefly describe the facts and history of the case, I wish to stress a very important procedural point. The case has been proceeding for an appreciable period of time locally in South Yorkshire. For about a year it was dealt with exclusively by a single district judge. Recently it has passed rapidly through the hands of two local circuit judges, and was then transferred for hearing by me, a visiting High Court judge, temporarily sitting here in Leeds.

Cases concerning intractable contact, probably more than any other case within the field of family law, require judicial continuity. There tends to be a need for a number of hearings, and it is of the utmost importance that one single judge deals with such a case from first to last so that he or she becomes very familiar with the dynamics of the a case, and the parties, in turn, become familiar with the judge who is dealing with their case. This makes it particularly inappropriate and unsuitable that a case of this kind is ever listed before an occasional visiting High Court judge unless that judge is known to be making repeated return visits to the area in question.

I myself am currently sitting here in Leeds for about three weeks. I am not scheduled to be sitting again in Leeds or anywhere in Yorkshire throughout 2016, and I have no idea where I will be sitting after that. In other words, I cannot give to this case any judicial continuity whatsoever. I am merely, as it were, passing through it. For the reasons I have indicated, that is highly undesirable, and listing officers should take great care to ensure that it does not happen in relation to a case of this kind.

I am aware that in some cases involving intractable contact judges of a lower tier sometimes believe that in some way a High Court judge can bring a new insight to the case, or bring about change which the lower tier judge has been unable to achieve. The fact of the matter is that I do not have any power in relation to this case which is not possessed also by a local circuit judge. I have no “magic wand”, and any advantage in the case being heard by a High Court judge is more than outweighed by the disadvantage that there can be no judicial continuity.

Having made that important point, I turn briefly to the facts and history of this case. I am deliberately doing so in an anonymised and somewhat sketchy form, since this judgment will be made publicly available but in anonymised form.

The parents were never married to each other but had a relationship of some duration. There is some dispute as to the extent to which they were living together or merely spending periods of time together, but that is irrelevant to what I have to decide. The mother already had a daughter from another father who is now aged 5. From their relationship these parents have two sons. The elder is aged almost 4, and the younger is aged currently about 19 months.

There came a time when there was a breakdown in the relationship between the parents and separation between them. Issues then arose as to contact between the father and his two sons. It is right to say, as the father himself stresses, that litigation has now been in progress for almost 19 months, and effectively throughout the life of the younger son. It is, and always has been, in general terms the case of the mother that the father has displayed aggressive, and at times violent, behaviour. As part of her case she says that he has some form of sleep disorder such that he can act with aggression or, indeed, sexually inappropriately in his sleep.

The father, as applicant, commenced proceedings for contact. As is normal, CAFCASS was asked to conduct initial safeguarding enquiries. By a report dated 12^th June 2014, an officer of CAFCASS, who is not the officer currently engaged in this case, reported briefly on his safeguarding enquiries. These included telephone interviews with each of the mother and the father on 2^nd June 2014. It is important to stress that the officer in question never met either parent and, so far as I am aware, his report is based only on the contents of a single telephone call with each of them.

His report, under the heading “safeguarding interview” with the mother, includes the following:

“[The mother] stated that whilst she was in a relationship with [the father] he once threw [the elder son] across the bedroom on to a mattress whilst he was angry. She stated that he had never been physically violent towards her or the children but he had bullied her through verbal taunts during their relationship. [The mother] stated that [the father] has sleep problems and this has led to him on occasions wrapping blankets around [the elder son’s] head whilst they shared a bed. She also stated that [the father] has also made unwanted sexual advances towards her whilst he has been asleep and she fears that the children would be at risk if he were to be in the sole care of the children at night time.”

As I have said, that report is dated 12^th June 2014; but the mother has said very emphatically that she herself never saw its contents, nor was aware of them, until the course of the hearing at the end of March 2015 to which I will shortly refer.

There were home-made statements by the mother and the father in the course of which the mother elaborated allegations of aggressive and violent behaviour by the father. She has told me, and I accept, that she visited at least three firms of solicitors in Yorkshire, and one firm of solicitors in the area in which she now lives, asking them to represent her and to seek to obtain legal aid. She says that none of them agreed to represent her, and the indication to her seemed to be that there was something in that CAFCASS report dated 12^th June 2014 which had the effect that she would not be able to obtain legal aid.

The reality of the matter is that the mother makes very considerable allegations of serious aggression and violence by the father towards her, and separately the children, including her daughter. This case is a very serious one. There are very serious allegations and issues at stake; and, subject to means (but she says she is entirely dependent on state benefits), this mother desperately needs proper legal representation and the court desperately needs the mother (and ideally also the father) to be properly legally represented if it is to get to the bottom of the truth of the matter. To date, however, neither parent has had any legal representation.

So it came about that the case was listed for a fact finding hearing before a district judge which took place on 30^th and 31^st March 2015. Both parents represented themselves. I wish to make crystal clear that in what I am about to say I do not intend any criticism whatsoever of the district judge concerned (whom I do not know) who obviously did his very best in a difficult situation.

The unsatisfactory nature of the hearing perhaps emerges from paragraph 15 of the transcript of his ex tempore judgment in which he says:

“Because both parties were unrepresented, as opposed to cross-examination I allowed both parties to have their say and move the matter backwards and forwards and I heard at length from both the parties who confirmed the contents of their written documentation and gave oral evidence. I am satisfied I heard sufficient yesterday to enable me to reach some conclusions.”

Importantly, he went on to say:

“I do not doubt that mother genuinely wants what is best for her children and the views she expresses are her genuinely held views.”

However, I have to say that the judgment as a whole contains little account of the detail or content of the evidence that was given, or any real analysis of it. The judge said at the end of paragraph 16 of his judgment:

“At the end of the day what this court has to grapple with is whether this father is a risk to his children.”

He then referred to that initial safeguarding report by CAFCASS and the fact that within it the mother is reported as having:

“…stated that he had never been physically violent towards her or the children…”

Shortly after that he says in his judgment:

“I cannot ignore the fact that that is what it is said that mother is reporting, but other than those matters specifically referred to he had never been physically violent towards her or the children.”

I have been told by the mother yesterday, and this was confirmed by the CAFCASS officer who is now the children’s guardian and was present at the hearing on 30^th March 2015, that the mother strongly said then, as she says now, that she did not say to that first CAFCASS officer what he recorded her as having said. Deeply regrettably, the officer was never contacted. He was never asked to come to court. Whatever notes he may have made of the telephone conversation have never been produced or examined.

The upshot is that this case has been very decisively affected by a few challenged lines in that initial safeguarding report, which are themselves based purely on a single telephone conversation of which no original record has been produced. They appear to have had the effect that the solicitors whom the mother approached thought that it was forlorn even to apply for legal aid. They appear clearly to have decisively influenced the district judge in the decisions that he reached on the facts.

The upshot is that so far as any allegations of aggressive or violent behaviour towards the children are concerned, the district judge was not satisfied that anything had happened except for one incident, which became known as the “bedroom incident”, in which he concluded that the facts lay somewhere in the middle of what the mother alleged and the father admitted.

In relation to the mother’s allegations of aggression and violence towards herself, the district judge simply said at paragraph 28:

“Insofar as allegations of behaviour directed against the mother are concerned, again I hear what mother says. I make no specific findings one way or the other, but these are allegations relating to the mother. Mother is not suggesting to her credit that the behaviour was such that she is living in fear of father. They are now separated. If there had been incidents, they are not going to re-occur because the parties are not together. Again, I am not satisfied that anything I have heard satisfies me that this father is a risk to his children.”

When I say that the allegations made by the mother (I stress very clearly that I have no position whatsoever as to the truth or otherwise of them) include an allegation of raping her, it can be seen that that particular paragraph fails adequately to analyse the evidence and reach conclusions in a situation where conclusions were required.

At all events, the thrust of the judgment and decision of the district judge was that there was nothing in the past behaviour or attitudes of the father which represented any risk to the two boys in having contact, including unsupervised and ultimately staying contact with him. The district judge then made an order dated 31^st March 2015 which provided that the children shall live with their mother and should have specified periods of contact with their father, initially supervised and later unsupervised but based on a specified contact centre.

The order expressly provided that until further order the mother was prohibited from permanently removing the children from an address in Yorkshire. She was living at that time at a refuge. The district judge fixed a final hearing for 6^th August 2015, making it clear that it was his intention that at that hearing the likelihood was that contact would progress to overnight contact every other weekend and additional contact, including holiday contact. The order also stated also that the order prohibiting the mother from permanently removing the children from Yorkshire would be replaced by an obligation to give the father two months’ notice of any such move.

Regrettably, the mother, very knowingly and deliberately, breached that prohibition on not removing the children from Yorkshire. In June she took them to live at the address at which they now do live in another part of England a considerable distance away from Yorkshire. The father knows the county concerned but not the precise address. The mother has explained that she had been living in a refuge. She had friends in the locality to which she has moved. Her own mother is unwell or disabled and has a degree of dependence upon the mother, and her own mother wished to move also to that locality. The mother frankly says that she made a decision deliberately to move, in defiance of the order, out of desperation that she would not otherwise be able to make orderly arrangements for herself and her children.

The upshot is that since June the mother and the children have been living together in a privately rented two bedroomed house in the new locality. She says that she sleeps in one bedroom and the three children sleep in the other, which she says is a large bedroom in which each child has his or her own bed. She says that the two elder children are now settled in a local school, and generally that she has established a settled life and environment for herself and her children.

Deeply regrettably also, the contact which the district judge had ordered in March has not taken place in accordance with that order. Indeed, the last occasion upon which either of the boys saw their father was 20^th June 2015. There is some dispute as to whether all the subsequent occasions of contact were cancelled by the mother, or whether one or two of them were cancelled by the father; but it is quite clear to me that the strong primary responsibility for the contact not having taken place clearly rests with the mother. In those circumstances, the father has now applied for the immediate removal of the two sons from the mother to live with him, and it is that application which has come before me this week.

The second of the two CAFCASS officers was appointed formally as guardian for the children on that application and she, in turn, has been extremely well represented at this hearing by a solicitor, Mrs Ruth Coneron, to whom I am very indebted. By her report dated 9^th October 2015 the guardian recommended that the boys should, indeed, be moved immediately from the mother to live with their father. Her report concludes with the following sentence:

“In considering all the evidence, it is clear that a change of residence is the only way to enable the children to maintain a relationship with both parents.”

When children are living with one parent and that parent is not promoting contact between the children and the other parent, it is sometimes necessary and appropriate that there is a change in the residence of the children so as to enable them to have a proper relationship with the other parent as they grow up. In making such a decision, it is extremely important for the court and all concerned to bear in mind that it is a decision with regard to the upbringing of the child or children concerned, to which section 1 of the Children Act 1989 applies. The court or, indeed, any decision-maker must make the welfare of the child or children concerned the paramount consideration.

It can never, ever, be appropriate or justifiable to change residence unless to do so is overall better for the welfare of the child or children concerned than not doing so. It can never, ever, be appropriate to change residence in these sorts of circumstances simply to punish the parent, usually a mother, who is not promoting contact or obeying orders of the court. Other forms of punishment may, of course, be available, even if limited. In an extreme case and after due warning they could, of course, include imprisonment of the defaulting parent who is in contempt of court. But a decision actually to remove the child or children should never, ever, be taken punitively; for if such a decision is taken and it is not in the overall best interests of the child or children concerned, then the people who get “punished” are the children themselves.

I wish to make clear that I do not in any way at all preclude, by anything I have said or done at this hearing or in this judgment, that the day may come when these boys should move from living with their mother to living with their father. But I am absolutely clear that it would be a very wrong decision of me in the circumstances of this case at this time abruptly to remove them as is proposed.

There are a number of reasons for that. First, it needs to be recognised that these boys have always lived with their mother. Further, they are in a sibling group and relationship with their only slightly older half sister. The mother has said at this hearing that the elder boy and his sister are “best friends, like twins and inseparable”. She says that her daughter is “also very close to” the younger son. The father comments that she would say that, wouldn’t she? In the report by the guardian this factor only gains a single sentence in a single line of consideration where she says at paragraph 20:

“They would also experience the significant loss of their sister… to whom they are close.”

In my view, very careful consideration would require to be given in this case to the potentially damaging effect upon these boys and, indeed, also, although she is not the direct subject of the proceedings, upon the sister of splitting up this sibling group in the way proposed.

The second reason, which follows on from that, is that I actually have no up-to-date objective or independent evidence whatsoever about the circumstances in which this family are living, and as to the attachments between the various members in the mother’s home. It is a criticism by me of the guardian that although the mother has now been living with the children in the new location since June, approximately five months, the guardian has not visited the mother or the children in that household at all. So although the father says the mother would say that, wouldn’t she, a potentially very significant factor and consideration in this case has been largely ignored.

Third, I have no up-to-date information as to the wishes and feelings, at any rate, of the elder son who is now effectively 4.

Fourth, there has been very little investigation of the circumstances in which, realistically, the father could care for these two boys. He currently lives in the home of his own mother, together with two adult brothers of him. Whilst he says that in the longer term he could make arrangements to live elsewhere with his sons, at the moment he and both sons would have to share one front room as the bedroom in a somewhat cramped and undesirable way. He himself works five days a week, and although he says that he could reduce his hours of work in order to spend more time caring for his children, that of course would have a knock-on effect on his income. Frankly, the whole set up which the father can offer for these children requires much more investigation and consideration, including by the guardian, than has currently been given.

Fifth, and perhaps overarchingly, is the following factor. The guardian’s report and conclusion assumes that by moving the boys from the mother to the father, that is “the only way to enable the children to maintain a relationship with both parents”. The mother has, however, made very clear indeed that if these boys are removed from her to live with their father, she would simply feel unable to maintain a continuing relationship with them. The guardian was aware that that was her stated position, but is perhaps somewhat dismissive of it.

I have, however, heard at some length from the mother during this hearing. I am satisfied on this point that she means what she says. It is the absolute, unshakeable position of this mother that this father poses a considerable risk of violent or aggressive or abusive behaviour towards their sons. She has said repeatedly and on oath that rather than permit unsupervised contact, she will accept the punishment of imprisonment. She has said repeatedly and on oath that, if these children are removed from her to the father, she will feel unable to have a continuing relationship with them. She said yesterday:

“I know I cannot maintain a good mental state knowing that my children are in severe danger. They cannot move during contact from a violent home [viz with their father] to a distraught mother. I also have to remain stable for [my daughter]. If they were to come and stay with me I would not hand them back, and I would face imprisonment, which would not be fair for the children. I left him purely for the children and to keep them away from that violence. If I sent them to their father, it would destroy me and I could not continue as a good mother to the children. The only way I could cope would be to forget the boys and to mourn them. It also would not be fair on the children to see me distressed. I would not be able to keep a straight and happy face.”

That may seem a very extreme position for a loving mother to take, but I am satisfied that, at any rate currently, it is the considered position of the mother for those very clear reasons which she gave. The upshot is that if these children are removed from the mother to the father, then they would gain a relationship with their father but lose any relationship with their mother, and inevitably also their sister. This seems to me to be a decision of the utmost gravity, which could only be taken after very exhaustive consideration and investigation, and every alternative method of maintaining some contact between these children and their father had failed.

So for those reasons, I made clear at an early stage during this hearing that I was simply unwilling at this hearing to make the decision that the father seeks that these children be removed abruptly and immediately from the care of the mother to his care. We have, however, spent a considerable amount of further time in considering the case more generally and the way forward. It has become increasingly clear to me that the central problem and issue in this case at the moment is that the district judge made the findings that he made, which I have summarised above, but that the mother resolutely does not accept those findings. She remains absolutely resolute that what she alleges is true and that the district judge simply failed to reach the right answer.

There are broadly in this case three possible scenarios. The first is that what the mother alleges is true or substantially true. The second is that the mother is an out and out deliberate liar who is trying to blacken the father and manipulate the situation for devious reasons of her own, so as to prevent any contact, or any unsupervised contact, between the children and their father. The third possibility is that, although the allegations may not be true or substantially true, the mother has convinced herself of the truth of them. It may be, I do not know, that there is in play in this case some psychological disorder on the part of an unjustifiably over anxious mother who has fantasised or exaggerated in her mind small incidents into great ones.

There has been discussion during this hearing as to whether the mother should be seen and examined by a suitable psychologist to investigate whether some such psychological disorder is in play in this case. The mother herself has, indeed, said that she would be very glad indeed to see a psychologist. The difficulty is that if she were to see a psychologist at the moment, for the purpose of these proceedings, that psychologist would have to start from a foundation that what the district judge said and found is correct; and, frankly, the situation would just continue going round in circles, for the mother so resolutely maintains that the district judge was mistaken.

I cannot at this hearing re-examine the facts, for time does not permit and, in any event, the hearing has not been structured as a fresh fact finding hearing. But I have to say that by the conclusion of this hearing I have been left with a deep concern as to the reliability of the conclusions reached, with the best of intentions, by the district judge. As I have said, he did not have any legal assistance. The hearing was in some respects perfunctory. It was perhaps over influenced by a proposition in that first safeguarding report which the mother strongly denies saying. There is, with respect, little analysis of the evidence in the judgment. But unless and until those findings can be re-visited, this case will simply continue to go round and round in circles.

For those reasons I have concluded, however unusually, that I should treat the mother’s strongly stated position that the district judge made mistaken findings, as representing an oral application for permission to appeal and permission to appeal out of time from those findings of fact. I propose to grant her permission to appeal. I propose to allow the appeal and set aside the findings of fact reached by the district judge. I will give detailed orders and directions, in terms that have already been fully discussed, for this whole matter to be allocated with a fresh start to a local circuit judge who must now deal with the case with maximum judicial continuity. There will be directions designed to achieve that there is a satisfactory complete re-consideration of the true facts.

I strongly hope that the mother, who in my view is clearly entitled to it in view of the serious allegations she makes, can obtain legal aid. I regret that the father is unlikely himself to be able to obtain legal aid, both because he is the respondent rather than the maker of the allegations of violence and abuse, and because his income may make him financially ineligible. The rest of the detailed orders and directions are, I think, self-explanatory and do not require further reference in this judgment.

The mother has made plain that she is quite willing to make the children available for supervised, or less intensively supported, contact. It is a problem in this case that both the mother and the father now live a long way away from Yorkshire (though this is an approximate midpoint between them), and the travelling distances now are very great. I deeply regret that, but it is just a fact, a reality, of this case, and both parents must do the best they can, albeit at great inconvenience and expense to each of them, to enable the contact to take place.

I make crystal clear that there will be very specific orders that the mother is not to move the children again from ordinarily residing where they now reside without the permission of the court, and the mother must enable the children to have the supervised or supported contact which is in the process of being precisely negotiated and agreed. The order will contain penal notices, and the mother must clearly understand that if she does move the children again without the permission of the court, or if she does not promote and facilitate the negotiated and agreed contact, then she will be in contempt of court; and I spell out with crystal clarity that she is highly likely to be sent to prison. She does know that very clearly. For the reasons which I have now given, I am not prepared at this hearing to remove the children from her.