A v A & Ors

This case concerns two children, whom I will call B and C. They are the children of Mr and Mrs A. B is a boy who was 11 in August 2003. C is a girl aged 9 and a half. Their parents are both professional people. Mr A is a hospital consultant now aged 55: Mrs. A is a teacher, now aged 50. They were married in April 1992 and separated in October 1997. Their divorce was made absolute in September 2001 By virtue of an order made in the county court on 27 March 1998; Mrs. A obtained a residence order in relation to both children.

Although I have not investigated the history, my understanding is that there was litigation effectively from the date of the parties’ separation in October 1997, when Mrs. A removed the children from the former matrimonial. Although ultimately compromised, the divorce was, as I understand it, initially defended. Given the subsequent hostility between Mr. and Mrs A, it is unlikely that the period leading up to their separation was entirely amicable.

Early in 2002, Mr A issued an application for a joint residence order and a defined contact order. His complaint was that Mrs A had been making unilateral decisions about the children’s health and education and marginalising him from those decisions. He had objected to a proposed change of school for C, and asserted that as a consequence, Mrs A had informed him that C was frightened of him. Contact between Mr A and C stopped in March 2002.

It is not necessary for me to recite all the interlocutory orders made in the county court. For my purposes, the important order is that made on 11 July 2002, which invited the National Youth Advisory Service (NYAS) to respond on the two questions of contact between C and her father, and Mr. A’s application for a variation of the order for residence made by the district judge on 27 March 1998.

A consultant psychiatrist, Dr. L was instructed to advise on the attitudes of the children to contact, C’s wishes in regard to schooling, and to give an assessment of what if any therapeutic input would assist the children regarding contact. She reported on 3 July 2002. She described B as a rather vulnerable, very sensitive child, who was “devastated and distracted” by his parents’ disputes. C had been very fond of her father but had now apparently turned against him. She did not want contact. Dr. L was not sure how she could be helped to see him again, but said that C needed to make her peace with her father. She reported that C wanted to move schools, and that B needed and would make use of some therapeutic input. She was not sure if C would make use of a similar therapeutic input, but that did not mean she did not need it.

On 11 July 2002 she gave evidence to the district judge. The result appears to have been a compromise of the school question, but the dispute over shared residence and contact was set down for a three-day hearing commencing on 20 November 2002 before the district judge.

NYAS’ response to the invitation contained in the order of 11 July 2002 was a preliminary report from Mrs. P, an independent social worker and the NYAS’ caseworker, dated 16 October 2002 and written for a directions appointment to be heard on the following day. I shall return to the detail of this report later. In summary, however, it recommended the making of a defined interim contact order between C and her father in the period leading up to the final hearing on 20 November 2002. The first period was to be at a family gathering due to take place on 21 October 2002. There were then to be further contacts observed by Mrs. P.

On 17 October 2002 the district judge joined the children to the proceedings and appointed Mrs. P their guardian. In accordance with Mrs. P’s advice, he made a detailed order providing for the first period of contact on 21 October and thereafter two periods of contact to be observed by Mrs. P. The court recorded its understanding that the contact visits were directed with the parties’ agreement and expressed its expectation that Mrs. A would make C available for all of them.

The contact fixed for 21 October 2002 did not take place. On 18 November 2002, Mrs. P filed her second report. It set out in considerable detail the work she had done since 16 October 2002. Her recommendations were dramatic. She proposed an interim residence order for a period of three to four weeks in Mr. A’s favour to allow the children what she described as a “short respite break”. Those arrangements should be reviewed before the children broke up for Christmas. The court should set down a finding of fact hearing to resolve concerns expressed by Mrs. A that C was at risk from her father. She suggested this be heard either by an experienced circuit judge or transferred to the High Court. She also expressed the view that the court might well wish to consider making an order under section 37 of the Children Act 1989 inviting the intervention of the local authority on the basis that the children were suffering significant harm. She also invited consideration of a psychiatric or psychological assessment of both parents.

The district judge acted promptly on Mrs. P’s recommendation that the case be transferred to the High Court. On what was intended to be the first day or a two-day hearing, he secured the immediate whereabouts of the children for the day and transferred the case to the High Court forthwith.

Thus it was that Mr and Mrs. A, their legal advisers, Mrs. P and counsel for NYAS all arrived unexpectedly in my court during the afternoon of 20 November 2002. Mr. A and NYAS were seeking the immediate removal of the children from Mrs. A’s care in accordance with the latter’s recommendation. Fortunately, I was sitting as applications judge and was able to accommodate an immediate hearing, which lasted into the following day. I decided not to follow Mrs. P’s primary recommendation. I directed that there should be contact between both B and C and their father as recommended by Mrs. P, and that contact should take place in the presence of C’s godmother, Mrs. H. I also directed a finding of fact hearing to take place on 16 and 17 December 2002 to deal with Mrs. A’s allegations that Mr. A represented a threat to C.

Contact remained problematic, but the finding of fact hearing took place. At the conclusion of it, I was a certain as I could be that Mr. A was not a risk to C, and that, in particular, there had been no sort of sexually inappropriate behaviour by Mr. A towards C, and that there was no lack of appropriate sexual boundaries between Mr. A and C as Mrs. A had alleged. I concluded that C had a loving relationship with her father, and that there was no reason why she should not both see him and stay with him.

Mrs. A assured me that she would accept my judgment and the findings of fact I had made. On this basis, although I was invited to do so by Mr. A, I declined to make any change in the residence order, but made it clear that in the light of my findings, I expected contact between Mr A and C now to be fully restored.

Most unfortunately, Mrs. A did not accept my decision. She allowed a friend to interview C. The allegations were repeated and elaborated through the friend. Mrs. A also involved another friend and her local vicar. Contact between Mr A and C was frustrated.

The result was a further hearing on 30 December 2002. Mrs. A had applied for a suspension of my order directing contact, and directions as to whether C should be seen by a member of the local police or social services child protections team. I dismissed that application and ordered that the children should live with their father.

The plan was that the questions of residence and contact should be listed for a full hearing on the last three days of the Summer term commencing on 28 July 2003. In preparation for that hearing, I had ordered on 19 December 2002 that NYAS should obtain a report on Mr and Mrs A from a psychologist, Mr. BC – that report to be available by 30 April 2003. In the event, Mr BC’s report was delayed. However, sufficient progress had been made by Mrs. P and Mr. BC for them to be able to recommend that the July hearing should be postponed for six months. I therefore listed the case for further directions on 16 December 2003

On 16 December 2003, there were further reports from Mrs. P and Mr. BC. Their joint view was that there was no purpose in the case proceeding to a full hearing. The children were now spending 50% of their time with each of their parents. That was acceptable to the children and to both Mr. and Mrs. A. The only issue was that Mr. A wanted the interim residence order, which I had made, in his favour to be retained: Mrs. A wanted there to be a shared or joint residence order. Although it was recognised as being highly unusual, both parents and NYAS wanted the joint residence orders to last until each child was 18, and also sought an order under section 91(14) of the Children Act 1989 preventing each of them making any further application to the court without the court’s permission. Details of the shared care arrangement, with careful identification of what days in each week would be spent with whom throughout 2004 were agreed, as was a schedule of items in relation to the exercise of parental responsibility, identifying those items which required mutual consultation and those which could be exercised unilaterally. I regard this as an extremely useful document, and attach a copy of it to this judgment.

In a nutshell, Mr. A’s argument was that the current shared care arrangements had only come into being after the interim residence order had been made in his favour. The only way they could be guaranteed to continue was if he retained the sole residence of the children. He was committed to the shared care arrangements, and assured me through counsel that he would honour them. But if, he said, Mrs. A obtained a shared residence order, she would abuse it, and there would be a return to the strife which had beset the family since 1998, when a sole residence order had been made in Mrs. A’s favour.

Mrs A was not at court on 16 December 2003. I was told that she had recently been diagnosed as suffering from breast cancer. She would, however, abide by whatever order I made.

After hearing submissions from counsel on behalf of both parents and on behalf of the two children, I stated that I intended to make shared residence and other consequential orders designed to ensure; (a) that the children spend equal periods of time with each of their parents; and (b) that the proceedings should come to an end. I agreed that I would make an order under section 91(14) of the Children Act 1989 barring any application by either party without the permission of the court, and I also agreed, again unusually, that the joint residence order should last until each child was 18.

As the orders I was making were unusual, I stated that I would put my reasons for making them into writing, in an anonymised form, which could be published. This I now do.

I have described the parents as Mr and Mrs. A, and I have called the children B and C. As will be apparent, none of these initials represents the true names of either the children or their parents. As will already be equally apparent, however, this is a case in which identification of the children and their parents would be seriously detrimental to the welfare of the family, whose privacy must be fully protected. At the same time, the case demonstrates points of interest and importance in the ongoing debate about the role of the courts in contact and residence disputes. It is, therefore right, in my view, that my reasons for reaching my decisions in the case should be made public. I am therefore handing this judgment down in open court, but directing that nothing should be published which would identify the children or their parents.

I have already summarised the history of the case from the court’s perspective. In her final report for the court dated 14 December 2003, the children’s guardian, Mrs. P, summarises the case from the children’s perspective in a manner, which I cannot better. I therefore propose to set it out in full: -

This case highlights 9 particular points, which I identify below.

The judgment, which follows, is very long. I propose to set out the facts in detail in order to demonstrate the difficulty and complexity of the case, and to illustrate and explain the points I have identified in the previous paragraph. Before setting out the facts, however, I wish to make it clear that I am not seeking to demonise either parent. Although some of Mrs. A’s actions were particularly inappropriate and damaging to the children, I am satisfied that both parents love their children deeply. However, both share the responsibility for the impossible and damaging position in which they placed them

The difficulties, which Mrs. P encountered in restoring contact between C and her father, are a clear demonstration of proposition number 3 set out at paragraph 24 above. When Mrs P met C for the first time on 10 October 2002, C told her that she did not wish to see her father. Mrs. P explained carefully about the court, and that the judge wanted Mrs. P to see C having contact with her father. Mrs P and C spoke at length about C’s worries and C agreed to write out a list of them. This is a very sad document for an eight-year-old child to produce, particularly when nearly all of it turned out to be untrue.

C wrote: -

Mrs P observed that C’s body language was quite incongruent with her verbal statements. She tried to reassure C that she would speak to her father before the first contact and gave her a guarantee that her worries would not come true on the first contact. She helped C plan how she might greet her father. She also arranged for Mrs. A to come to the meeting place, and that when she left, Mrs. P would remain close by C’s side. They would have a mobile phone number, and therefore would be able to summon her mother at any time.

Mrs. P says, and I accept, that when she left after the meting on 10 October 2002, C appeared to her to be happy to agree to go for the contact which, it was agreed with Mrs A, was to take place at 5.00pm on Sunday 13 October 2002 at the local MacDonalds. Mrs. P also says that B was delighted that contact between his father and his sister was to re-start.

I am satisfied that Mrs. P prepared C carefully and sensitively for the contact due to take place on 13 October 2002. However, when she arrived to collect C for the contact, she was told by Mrs. A, in C’s absence, that C had decided she did not want to see her father, and would not come for the contact. Mrs. A also showed Mrs. P a Women’s Aid Information Pack, which she had obtained after listening to a programme on Radio 4 on the previous day. As it happened, Mrs. P had listened to the same programme, which was about children forced to continue to have contact against their will and when the children had disclosed previous serious sexual or physical abuse against their father. Mrs. A made a comparison between C’s situation and the situation of the children discussed in the programme, and told Mrs. P that having read the Pack, she was reluctant to push C to go for contact against her wishes. She said she needed to get to the truth about why C was reluctant to see her father.

Mrs. P saw C who told her several times that she did not want to see her father and that Mrs. P could not make her go. Mrs. A said that C did not trust Mrs. P as she was going to force C to go to the contact. Mrs. P did not force the issue. She said she hoped C would come, and that she intended to wait outside until 5.00pm so that C could talk to her mother. She would then drive off and go and meet her father as planned. Mrs. A came out to the car at about 4.55 to speak to Mrs. P, but C did not emerge.

Mrs. C met Mr A and B at MacDonalds. Mrs. P then drove B in her car to Mr. A’s home. In the car, they were able to have a long discussion B talked at length about how upsetting he found the conflict between his parents. B also said he could not understand why C was expressing concerns about her father smacking her. He had hardly ever done so - at most four or five times ever. She had also been smacked by her mother.

B also agreed to write down his wishes and feelings. This is a document entitled: “Most Important Things”, which are:

Mrs. P was able to observe the interaction between B and Mr. A. She thought they had a warm, loving and entirely appropriate father son relationship. Mrs. P returned home at about 9.00pm to find a telephone message from Mrs. A, to whom she then spoke. Mrs. A told her that the more she had read the Women’s Aid literature, she more concerned she was about C having contact with her father. She related a number of incidents, with which I will deal later. She also told Mrs P that C had asked her to tell Mrs. P that she wished to see Mrs P as she had something to tell her.

Mrs. P discussed the matter with NYAS and they agreed that as C had made no disclosure of sexual abuse, the case should not be referred to social services and the police, but that Mrs P should see C as a priority. Thus on 14 October 2002, Mrs P saw C at her school, in the company of her head-teacher. Mrs P asked C why she wanted to see her. C replied that she wanted to tell Mrs. P about her father not wearing underwear in bed when she woke up in the middle of the night and climbed into his bed. She also said that she had seen him getting dressed and undressed and described a particular way he took off his underpants.

Mrs. P and C discussed a number of her anxieties. Mrs P was concerned about C’s demeanour. For the most part, she was happy, smiling and enjoying the attention of Mrs. P and her headteacher. Her body language and non-verbal communication were incongruent with the things she was saying.

Mrs. P’s interim conclusions, after what was on any view a very intensive piece of work, of which I have described only a small part, was that both B and C appeared to be children who were traumatised by the conflict between their parents. She was a satisfied as she could be that C was not at risk from her father, that there was no need for her contact with her father to be supervised, and that her worries and concerns about seeing her father could be sorted out, with the right support from Mrs. A and herself.

Mrs. P accordingly made the recommendation that contact should be re-started at a family gathering on 21 October when C’s paternal aunt and her cousins as well as other relatives would be visiting her paternal grandmother. That, accordingly, was the order made by the district judge. C’s paternal aunt was to collect her from her mother’s house, and her mother was to collect her after the contact from the home of her paternal grandmother. The district judge also ordered two other contact periods on Saturday 9 November and Saturday 16 November 2002. On each occasion Mrs. P was to collect C from her mother’s home and return her. The contact was to last for a minimum of two hours.

Mrs P was on leave on 21 October 2002. The contact, which had been ordered, did not take place. C’s aunt arrived to collect her with her two cousins. Mrs. A answered the door with C. C said she did not want to go. She had prepared a card for her grandmother, which was handed over. Nobody was invited into house. The entire conversation took place on the doorstep.

On Saturday 9 November 2002, Mrs. P arrived to take C to contact. She says C looked extremely frightened and was shaking. Mrs. P held her hand and said she would look after her. The contact was due to take place at Megabowl. They arrived at the same time as Mr. A and B. C was shaking and clung on to Mrs. P. On the way across the car park, B told his father that C was feeling very frightened and nervous. Mr. A said he felt the same. This made C laugh. Mrs. P says she felt the tension disappear, and C stopped clinging to her and just held her hand.

Mrs P reports that within minutes of arriving C relaxed and responded well to Mr. A. When she scored a goal against B, she leapt naturally into her father’s arm for a celebratory hug. There was a lot of natural physical touching between C and Mr. A. After about 30 minutes, C told Mrs. P and her father that she was enjoying seeing him and that she wished to start seeing him again, but not to stay overnight. Mr. A said he was delighted to see her again, as he had missed her terribly. However, she would not be pushed to stay overnight until she was ready.

When Mr A, the children and Mrs. P went to the park prior to going to MacDonalds, C appeared so content, relaxed and happy in her father’s company that Mrs. P withdrew and observed from a distance. She says that over a 15-minute period she noted that C sought out her father to give him a hug or a kiss on six different occasions.

The party then repaired to MacDonalds. The next week’s contact was discussed and C said she wanted to go swimming. It was arranged that Mrs. C would collect her and take her to her father’s home. She wanted to show Mrs P her bedroom there. Mrs. P had a commitment, which meant she had to leave at 5.30pm, but if all was going well, her father would take her home.

Mrs. A’s response to Mrs P’s description of the contact on 9 November 2002 was to say that she had concerns about Mrs. P’s professional practice. She said she did not feel Mrs. P had spent enough time with C prior to suggesting contact, and that she had failed to listen to C’s views.

Between the contact on 9 November and that on 16 November, Mrs. P set up a meeting between Mr and Mrs A. This, however, proved to be a disaster, firstly because of arguments between the parents about what Mrs. P considered minor matters, but also because Mrs. A began to talk about her concerns about the lack of sexual boundaries between Mr. A and C. As it happened, Mrs. P had only that morning received a letter from Mrs. A’s solicitors in which those concerns were particularised. Mr. A read the letter and became extremely angry and distressed. He accused Mrs. A of trying to ruin his reputation. He shouted abuse at Mrs. A. Mrs. P said the meeting was over and decided to take Mr. A outside. He continued to shout abuse at Mrs. A, who turned to Mrs. P and said: “I told you he was like this”. Once outside, Mr. A broke down.

Despite the events of 15 November, contact took place on Saturday 16 November as arranged. This was, in my judgment, a particularly significant contact. Mrs. A told Mrs P that C had said she did not wish to remain with her father after Mrs. P had left and that C wished to return with Mrs. P. Mrs. A said that after yesterday’s outburst there was no way she would allow Mr. A to bring C home. Mrs. P said she would prefer to be guided by C’s wishes at the time and if need be C’s godfather, who was staying with Mr. A could bring C home.

During the journey to contact, C expressed the wish that her parents got on better, and talked about how difficult it was for her that they did not. She was glad she was seeing her father again, and revisiting her old home. She wanted the presents that were there for her. She hoped very much that there would be reconciliation between her mother and her godmother Mrs. H, whom she missed a great deal.

When they went swimming, C chose to get ready with her father. In the light of the allegations made against him by Mrs. A, Mr. A was nervous about this. Mrs. P advised him that if C wanted him to help her get ready, he should do so.

When the time came for Mrs. P to leave, C said that she would like to stay on with her father and go out for a Chinese meal. Mrs. P telephoned Mrs. A to tell her what C had decided and to give details of the arrangements for returning her. C wanted to tell her mother her plans herself. She started talking excitedly to her mother. Mrs. P describes what happened next: -

Before they went swimming on 16 October, B spoke to Mrs. P and told her his wishes and feelings. He described how difficult he found the situation. He made five points, all of which seem to me to be remarkably percipient for a child of his age. They were: -

It was following these events, that Mrs. P made her recommendation in her report of 18 November 2002 that there should be an interim residence order in favour of Mr. A; and it was that recommendation which caused the case to be transferred to the High Court and to come into my list on 20 and 21 November.

In the event there were 7 areas of concern raised by Mrs. A. These were:

As to (1) there was really no dispute. Mrs. A did not suggest that there was anything sexual in this. Mr. A agreed he had used the word fluff” and I was satisfied that this was simply Mr. A, quite appropriately, telling his daughter to clean herself properly.

As to (2) assuming, as I was prepared to, that C had said this, I was quite satisfied this was, once again, quite innocent. Mr A had wiped C’s bottom when she was younger. I accepted his evidence that he had not done it at any stage inappropriately or when C was too old for him to be doing it.

As to (3) this seemed to me a point, which demonstrated how the parents’ inability to communicate with each other made for difficulties. B had developed the habit of defecating in what he described as “oriental style” by squatting on the rim of the toilet bowl. Apparently in so doing he had caused a mess at home in his mother’s house. His father allowed him to defecate in this manner in his house, and no doubt B told his mother so. My own view was that this was something, which was not socially acceptable in middle class England, and that B should have been so told by his father. I did not, however, regard it as in any way relevant to the question of C’s contact with her father.

As to the manner in which Mr. A removed his underpants, I commented that no doubt people do remove their underpants in different ways. The only relevance would be if Mr. A was in some way exposing himself to C. That was not alleged, nor had it happened.

As to (5) I was quite satisfied that Mr. A at no point had gone to the lavatory whilst C was in the bath, and I accepted his evidence that he had not done so.

As to (6) I regarded the “worry list” as a very sad document. Much of it was simply untrue, including the assertions that she does not love her father and that she did not like him sending cards or presents. Both had been disproved by the contact, which Mrs. P arranged.

That left the final allegation (7). This, on any view, was the most significant allegation. If true, the clear implication is that Mr. A had used what would otherwise be the entirely innocent activity of C sitting on top of him in bed for his own sexual gratification. The incident, accordingly, deserved careful examination.

The first point which had to be made was that the incident arose in the context of what can only be described as a more than usually acrimonious separation and divorce between C’s parents, and bitterly contested proceedings between them relating to residence and contact. Any allegation of sexual impropriety arising in these circumstances has, in my judgment, to be approached with great caution.

This need for caution was, in my judgment, reinforced where, as here;

There were several other factors, which, in my judgment, are of significance in making an assessment of this allegation. They were the following: -

Having heard Mrs. A’s evidence, I concluded that there were several possible explanations for an allegation of this kind in the context I had already described. The first, of course, was that it is an accurate reflection of what the child said, and that the child was speaking the truth. At the other extreme was the proposition that the allegation was not only untrue, but had been fabricated by the parent to whom it is alleged the child spoke. Between the two were a variety of possibilities.

Sometimes, in my experience, the anxiety about contact or residence demonstrated by the resident parent is so great that he or she simply misinterprets an innocent remark made by the child. That is what I have found may well have happened in the other incidents with which I have dealt. Sometimes, the anxiety displayed by the parent is so great that it induces the adult to lead the child into a description of an event, which has not occurred, but which the adult believes may have occurred. Sometimes the child, anxious to please the residential parent, and acutely aware of that parent’s heightened anxiety, is led by the parent into an allegation which, once again, simply has not occurred, but which both the adult and the child, in due course, come to believe. Sometimes, an innocent event is misinterpreted, either deliberately or through parental anxiety, and wrongly translated into an allegation of abuse.

In attempting to decide what had happened in this case, and applying the principles relating to the standard and burden of proof set out by Lord Nicholls in Re H (minors) (sexual abuse: standard of proof) [1996] AC 563, I was not impressed by Mrs. A’s oral evidence, or her demeanour in giving it. There were serious inconsistencies between her evidence in the witness box and the version on paper. I did not think she was an accurate historian. Her explanations for the inconsistencies lacked all conviction. An incident like this, which she clearly believes to be very serious, would, I think, have been clearer were it an accurate account of what happened. Whilst I was quite sure that she has good qualities as a mother, I was equally sure that her level of anxiety over contact was so great that not only had it badly affected C, but that it had also been responsible for this allegation being made.

I was entirely satisfied that C, who is a tactile child, and who loves kisses and cuddles from her parents, enjoyed, in an entirely innocent way, getting into her father’s bed, kissing and cuddling her father, and as well as sitting on top of her father when he was in bed, no doubt sometimes straddling him. I was entirely satisfied that all of that activity was innocent, and a normal part of family life. There is absolutely nothing wrong with children seeing their parents naked – as Mrs. A herself agreed. Nakedness is only abusive when, in the adult mind, an adult sexual motivation is introduced, and the adult’s or child’s nakedness is used for adult gratification. Having heard and watched both Mr and Mrs. A in the witness box, I was as satisfied that I can be that Mr. A’s contact with his daughter had been entirely innocent at all times. I accepted his denial of any form of sexual impropriety.

How then did this allegation emerge? I must avoid any temptation to engage in amateur psychiatry or psychology. But, on the balance of probabilities what I find has happened is that following the unfortunate failure of the contact on 21 October, Mrs. A spoke to C about her father. I cannot believe that C instigated the conversation. Questioned by Mrs. A, C may well have told her mother about getting into her father’s bed, and sitting on top of him when he was in bed. That innocent activity has been transmuted by Mrs. A into an allegation of sexual misbehaviour. That had happened, because, despite her protestations to the contrary, Mrs. A remains profoundly angry with Mr. A, and profoundly anxious that C and B may be removed from her care.

The alternative, of course, is that Mrs. A had fabricated the whole incident. That may be the case, but on balance I think it unlikely. I think it more likely that in an unwholesome and inappropriate conversation following the failure of contact on 21 October, Mrs. A spoke to C, and distorted something C said

I am anxious not to demonise Mrs. A, and I hope I am not doing so. The evidence in this case – the medical bundle in particular, cries out with the message that these two children were suffering because of their parents’ mutual hostility. That is a message, which I endorse. Each of the parents dealt with their anger in different ways, but that each was very angry I had no doubt. I think Mr A is sometimes able to disguise his anger under a professional veneer, but equally, I think he underestimates the effect of his anger about Mrs. A on the children. They are well able to appreciate how angry he is. Children should not either be exposed to, or to be expected to cope with such a complex emotional dynamic.

Mrs. A had assured me that she would accept my findings and work with them. In my judgment on 18 December 2002, I said that the next few weeks and months would be crucial. I made it quite clear that there was absolutely no reason why C and B should not see their father and stay in his household. They were not at risk of any form of physical or sexual abuse. The only risk was emotional abuse caused by difficulties over contact. There was no reason why, with Mrs. P’s help, extensive contact over Christmas should not be agreed. I looked to both parties, but Mrs. A in particular, to work with Mrs. P to facilitate contact. I told Mrs. A that I would not be impressed, if this case came back to me for a further contested hearing, if I was told by her that C did not want to go to contact. If C continued to say she did not want to go to contact that could only mean that Mrs. A did not want her to go to contact. She had assured me this is not the case. The proof of the pudding, in the trite phrase, would be in the eating.

Most unfortunately, Mrs. A proved unable to accept my findings. Worse than that, she attempted to revive and expand the allegations. As related by Mrs. P, who in my judgment is a reliable historian, the sequence of events was as follows.

At around 11.45am on 21 December 2002. Mrs. A telephoned Mrs P and told her that during the car journey home, C had made a further serious disclosure to her. Mrs. A told her that C was now saying she would tell Mrs. P her secret, and Mrs A requested Mrs. P to visit C to talk to her. Mrs. P asked Mrs. A seriously to consider the implications of her not accepting the court’s judgment, given on 18 December, and the finding that Mr. A was not a risk to C.

Around 12.30pm the same day, Mrs. P telephoned Mrs. A who told her that C had recounted the same allegations which she had first disclosed on 21 December, but this time Mrs A said that C had mentioned that her father had underpants on, and his ‘willy’ had got hard and then gone soft.

Mrs. A asked Mrs. P’s advice about what to do. Mrs. P stressed the importance of her accepting the judgment of the court, and keeping to contact arrangements. She suggested she could report C’s recent statement to the Police and Social Services for further investigation, if she felt this was warranted. Mrs. P said that she was not available to interview C due to family commitments until the New Year, and that she would need to seek legal advice, given the judgment of the court, prior to doing so in any event. She suggested that Mrs. A carefully thought through the full implications of any decision she made.

Around 5.00pm on the same day, Mrs. A telephoned Mrs. P. She told her she had had further discussions with C and told me that she now “had concerns about C’s demeanour.” She said that C was now willing to go to her father’s for staying contact. She asked Mrs. P to telephone Mr. A to inform him she was bringing C. Mrs P suggested that Mrs A should drop C off and knock on the door, and ensure that there was not a further dispute between the adults in front of the children. She then telephoned Mr. A to inform him of C’s imminent arrival. C was then taken to Mr. A’s home and Mrs P was told by Mr. A that she arrived smiling, and was settled and relaxed all evening, although she wanted to sleep with B.

Sadly, that was not the end of the pre-Christmas difficulties. Having previously, as she thought, clarified the arrangements for all the pre-Christmas handovers, Mrs. P arrived home on 23 December around 5.15pm, to find that C had left her 3 telephone messages to say she did not want to go back to her father’s as he was having an adult party that night. At 5.20pm, C telephoned Mrs. P to say she did not want to go to her father. Mrs. P told her that the adults all wanted her to go, and reminded her it was Christmas and she would have a nice time. Mrs. A came onto the telephone, and was angry that Mrs. P had not been available earlier. Mrs. P emphasised to Mrs. A the need for her to promote positive contact between C and Mr. A, and she should be helping C to attend as arranged. This prompted an angry tirade from Mrs. A. Mrs. P reminded her of the time and that it was not convenient for her to have any further discussions with her as she needed to go out, and she hoped that Mrs. A would take C and B to meet Mr. A as arranged.

Mrs. P’s report then continues: -

Mrs. P then records in meticulous detail everything JJ told her C had said. JJ had not taken notes of her conversation with C, but when Mrs. P read her back my completed notes, JJ agreed that she had recorded their conversation truthfully.

I will not burden the already overlong judgment with the detail of JJ’s conversation with C. I did not hear oral evidence from JJ, and therefore do not want to be too critical of her, but what she did was plainly extremely unwise and altogether unacceptable. She had no experience in interviewing children. The interview took place through a fantasy, with C allegedly describing what happened to a boy called Calvin who had the same birthday as C. There are leading and suggestive questions, and dolls are used to demonstrate what allegedly happened. As a piece of evidence it is worthless, and, sensibly, no attempt was subsequently made to rely upon it by Mrs. A’s counsel at the subsequent hearing.

Statements were made by Mrs. A, JJ, SM and Mrs. A’s vicar Mr. H. These were sent to me. I also received an Email from Mrs. P advising me that in her view the situation for the children had become intolerable. Mrs. A’s solicitors had drafted an application seeking a variation of the order I had made on 18 December and directions that C be seen by the local police child protection team or social services.

I sent a FAX to counsel on 24 December stating that I was not prepared to make any order on a without notice basis. I stated, however, that I would hear Mrs. A’s application on 30 December 2002. I was not, in the meantime, prepared to make any order suspending or varying contact unless NYAS advised that contact to C should be informally suspended until 30 December because of the distress currently caused to her.

On 29 December 2002, the indefatigable Mrs. P produced her third report. She expressed her surprise that the issue of C being at risk of sexual abuse had been raised again by Mrs. A, and that she had involved her vicar and two friends. The consequence had been that, for the first time, B and C had spent Christmas apart, and Mr. A’s Christmas arrangements for himself and his extended family had been wrecked.

Mrs P had conducted a number of visits and interviews on 29 December, the date of her report. In particular she had a long conversation with C. She also had a significant conversation with B. She also spoke to both Mr and Mrs A.

The outcome of her long and careful discussion with C is best described in Mrs. P’s own words: -

Equally worrying, in my view, was Mrs. P’s conversation with B. B had been instructed by his mother to tell Mrs. P about Mr. A telling C off and smacking her several years ago. This was why she did not want to see him. Mrs. P later asked B about this incident. B said it was nothing. He had told Mrs. P because his mother had told him to. He said he was a bit frightened of his mother, if he did not do as she said. He said that his mother wanted to know every detail of what he did with his father, in order to pick fault.

B said he was “fed up” with what he described as “the war”. He needed a break. Perhaps he could live with Mrs H, C’s godmother. He would like to live with his father, but his mother would never agree.

Mrs. P was particularly concerned that despite seeking her advice, Mrs. A nonetheless permitted JJ to interview C. Mrs. P had explained to Mrs. A the need not to contaminate evidence by questioning C, and the importance of only properly trained and experienced professionals speaking to children about potential sexual abuse. Mrs. P’s assessment was that Mrs. A appeared to be stuck in battling for power and control of the children with Mr A and incapable of seeing the emotional damage she was causing them.

Mrs. P was in no doubt that the children should be removed from their mother’s care. There were various options. There was that which I had adopted in Re M (Intractable Contact Dispute: Interim Care Order) [2003] 2 FLR 636, namely the making of an order under section 37 of the Children Act 1989 inviting the local authority to investigate and report with a view to applying for an interim care order. However, I took the view that this course was not appropriate on the facts of the instant case. There would be a substantial delay, and the children were in urgent need of respite. Foster care was inappropriate. Although Mr. A had been as engaged in the battle as Mrs. A it was more likely that, at least in the interim, the children would be under less pressure living with him than with Mrs. A. Equally, a removal into Mr A’s care was the only means of ensuring that C would maintain her loving relationship with her father.

I duly heard Mrs. A’s application on 30 December 2002. The evidence was limited to that of Mrs. P, who was extensively cross-examined by counsel for Mrs. A. At the conclusion of the evidence and submissions I was in no doubt that the best course, in the interests of both children was to make a residence order in favour of Mr. A and to dismiss Mrs. A’s application that C be interviewed by social services or the police. I was entirely satisfied that Mrs. P’s analysis was correct, and that the extended disclosures made by C were the result of additional pressures placed on C by her mother.

It was quite clear that my decision on 30 December 2002 was in no way the end of the case. A great deal of work remained to be done with both Mr and Mrs A, and I accepted Mrs. P’s advice that there should be a psychological assessment by a psychologist, BC, and that the position should be reviewed in three months. I also agreed with the introduction of a careful pattern of contact between the children and their mother, and ordered that the case should be listed for directions on 24 February 2003.

After an initial period of distress, both children settled down with their father. Contact with their mother was introduced in accordance with the proposals made on 30 December 2002. Both children appeared happy at school. Work began with the psychologist designed to establish how best Mr. and Mrs. A could exercise their shared parental responsibility. In her report for the directions hearing dated 24 February 2003 Mrs. P identified NYAS’ goal as moving towards shared residence. Contained within the report was a proposal for the equal division of the children’s time over a given fortnight. Annexed to the report was a more ambitious schedule setting out the proposed division of time up until 24 April 2003. Shared residence accorded with what the children wanted. NYAS recommended that Mr. BC have permission to see the children and observe their relationship with both parents as part of his assessment, and that the case be listed for final hearing.

The final hearing had been fixed for 28 July, but the timetable slipped and on that date I relisted it for further directions on 16 December 2003. I did this because I was advised by NYAS that considerable progress had been made in the case and that the children were now happily dividing their time equally between their parents. There was also a suggestion that, following meetings between Mr and Mrs A with Mr. BC and Mrs. P, Mr and Mrs A were beginning to be able to reach amicable agreements about how they were going to communicate and make decisions about the children in the future. Mr. BC’s opinion was that this work should continue for another six months, as there were still many issues unresolved.

The way the system operated in term time was that over a given fortnight, the children spent the first Monday and Tuesday with their mother; Wednesday and Thursday with their father; Friday to the following Tuesday with their mother and Wednesday to Sunday with their father. The cycle would then recommence. The advantage of the scheme was that in term time the children were delivered to and collected from school, thus avoiding parental contact at handovers.

Mrs. P reported that both children felt relaxed about the 50-50 split and both felt equally at home in either household. C echoed her brother in telling Mrs. P that 50-50 was best because her parents had nothing to argue about. Mr and Mrs. A had begun to communicate by Email. Further areas of work were identified, notably agreeing how decisions in the future were to be made. A detailed calendar dealing with the arrangements from July through to December was annexed to Mrs. P’s report.

For the directions appointment on 16 December 2003, I had further reports from Mr. BC and Mrs. P. Although they were agreed on the way forward, the reports did not make altogether happy reading. There was plainly an unbridgeable divergence of view between Mr A and Mr. BC and Mrs. P as to the nature of the work, which still required to be done.

Mr BC had recorded the belief expressed in his earlier report that if there was going to be meaningful progress in the lives of the children, both parents would need to take responsibility for attempting to create a healthy emotional climate, rather than put their energies into locating responsibility onto the other. That required both parents to engage actively together in the process, for which they would need professional intervention. Mr. BC therefore recommended further joint sessions of the type, which had preceded his earlier report.

It became quite clear, however, that Mr. A had a different agenda. This emerged in the two sessions organised by Mr. BC and Mrs. P and attended by Mr and Mrs A. I am conscious that I have not heard oral evidence about these meetings, and am reliant for their content on the reports of Mr. BC and Mrs. P. I am reasonably confident, however, that what they report is accurate.

In the first session, Mr. A made it clear that in his view the meetings would get nowhere unless the important underlying issues to do with Mrs. A’s problems were resolved. He stated that he and his family had suffered and that the children did not know where they were over the current arrangements. He felt Mrs. A had not changed an inch. Understandably, as Mr. BC felt, he wanted an apology from Mrs. A over the allegations of sexual impropriety. Mr. BC describes Mr. A’s statement as “an emotionally charged tirade” to which Mrs. A listened patiently. She then apologised, saying she was deeply sorry for what had happened and that she could not say how sorry she was. She also indicated that she wanted to move on.

Mr. BC reports Mr A scoffing at her apologies, which he did not accept. The word “sorry”, he said, trips off the tongue very easily. It had to be supported by action and he would not accept Mrs. A was sorry unless she did something to demonstrate contrition – something which caused her some discomfort. When Mrs. P intervened to say that Mrs. A was clearly asking him to forgive her, Mr. A’s response was that the allegations were part of a wider problem with Mrs. A which was such that he felt things could not be resolved.

When Mr. A was asked what Mrs. A could do to show contrition, he suggested sorting out the mess over the children’s passports. Mrs. A agreed that he could have the passports. It was apparent, however, that Mr. A wanted there to be an acceptance that Mrs. A had significant psychological problems, which were the primary causal, factors in the family’s previous difficulties.

Mr. BC and Mrs. P hoped that, since Mr. A had expressed himself so vigorously in the first session, it might be possible in the second to shift the focus from the past to the present more practical matters relating to the children. Unfortunately, however, Mr. A continued his heated criticisms of Mrs. A. He accused her of telling a pack of lies; that everything she said was distorted; that it was a pathological problem and that the problems of her fantasy had to be addressed.

Mr BC reports Mr A saying that he wanted the “fundamental issues” dealt with and that this was what he had been promised. In an increasingly intemperate fashion he said he did not want to sit in the same room as Mrs. A; that he found her “revolting” and “flesh-creeping”. After a brief discussion about taking responsibility for the allegations of sexual impropriety, Mr. A exclaimed loudly: “this woman is a monster”, and left the room.

In these circumstances, Mr. BC understandably concluded that the prospects of any further useful work being successful were minimal. Mr. BC expressed his understanding of the depth of Mr A’s feelings, and that a man in Mr. A’s professional position would inevitably feel intensely bruised and battered by the allegations of sexual impropriety. That said, Mr. BC

Mr BC’s report concludes:

In more moderate terms, Mr. A’s solicitor, in a long and carefully drafted letter to NYAS dated 2 December 2003 states Mr. A’s belief that if Mrs. P is to recommend a shared residence order she would be failing in her duty to NYAS if she did not confirm that she had read and digested the three lever arch files of material placed before the court. He also records Mr A’s belief that both parties should be seen by an adult psychiatrist / psychologist. If no experts specialising in adult psychology / psychiatry were engaged, it was argued, the family would never be able to deal with the “adult issues”.

Mrs. P, in her report, dated 14 December 2003, does not agree with this approach. She summarises her position as follows: -

In her conclusion Mrs. P made it clear that in her opinion the time was right for a final order to be made. She regretted the lack of progress made since June 2003. She did not think that a psychological / psychiatric report on Mr and Mrs A would assist the court. She did not think that any further intervention could be offered to Mr and Mrs A to help them resolve their difficulties.

Her primary recommendation was that since both parents share parental responsibility, and the children’s time was to be equally divided, no residence order is necessary. However, if the court thought an order necessary, it should be a joint residence order. There should be a defined contact order stating that B and C have an equal amount of contact with each parent, continuing the pattern of the current shared care arrangements during term time and the school holidays being divided equally. Unusually, those orders should be expressed to last until the children are 18, and there should be an order under section 91(14) of the Children Act 1989.

I read the latest reports of Mr BC and Mrs. P and the letter from Mr. A’s solicitor with dismay. Mr. A’s conviction that all the family’s difficulties were attributable to Mrs. A, and that she suffered from some defect of personality which made it impossible for her to change made me think that, despite his understandable sense of outrage at the allegations of misbehaviour made against him, he had really learnt nothing from the whole process. The damage caused to these children flows directly from the mutual antipathy of their parents. That is simply not the responsibility of one or the other: it is the responsibility of both. Mr. A demonstrated that antipathy in the meetings with Mrs. A, Mr. BC and Mrs. P. He does not appear to be able to see that this is an antipathy, which his children do not share, nor should they. That, after all, was his complaint against Mrs. A – that she was alienating C in particular from him.

Mrs. A’s illness will be a time of considerable anxiety for the children. I do not know the stage or extent of her cancer. But the children will need sympathetic handling during her illness, and it will not help them if their father is demonstrably indifferent to their mother’s condition. If Mr. A’s attitude cannot soften in any way towards Mrs. A, I see real tensions ahead between the children and himself, and further harm caused to the children arising from his attitude.

At the same time, despite his intransigence, I believe that Mr A is a man of integrity and was acting in good faith when he instructed his counsel at the hearing to assure me that, if I made a sole residence order in his favour, he would continue to honour the shared care arrangements, which he accepted were in the best interests of the children.

Very few family cases have neat endings. This one has reached the end of the court process, but clearly the implications of any order I make for the children will reverberate into their adult lives. Mr. BC already thinks B a damaged child, further strife will only serve to damage him further. What order, therefore should I make before parting from the case?

There are three recent decisions of the Court of Appeal dealing with the question of shared residence orders. They are, in chronological order, D v D (Shared Residence Order) [2001] 1 FLR 495 (D v D); Re A (Children) (Shared Residence) [2002] 1 FCR 177 (Re A); and Re F (Shared Residence Order) [2003] 2 FLR 397(Re F).

The most important of these, in my judgment, is D v D. In that case there were three children who, following their parents’ separation, spent substantial amounts of time with each, despite the fact that there was a high level of acrimony between their parents and frequent applications to the court to sort out the detail of the arrangements. The father argued that without a shared residence order he was treated as a second-class parent by authorities with whom he had to deal over matters relating to the children. The judge made a shared residence order, and the mother appealed.

The judgment of Hale LJ (as she then was) is valuable both for its statement as to the current law and for its historical analysis. Hale LJ cites a passage (at [2001] 1 FLR 499) from the Law Commission’s Report (Law Com No 172 published in 1988) on which the Children Act 1989 is based, and which bears repetition.

It is for those reasons, Hale LJ comments, that section 8(1) of the Children Act 1989 defines a residence order as an order “settling the arrangements to be made as to the person with whom a child is to live.

In her judgment in the case, Dame Elizabeth Butler-Sloss P helpfully cites a passage from the guidance contained in the Children Act 1989 Guidance and Regulations, Volume 1, Court Orders published by the Stationery Office in 1991 paragraph 2.2(8) at page 10: -

The essence of the decision in D v D seems to me to be as follows. It is a basic principle that, post separation, each parent with parental responsibility retains an equal and independent right and responsibility to be informed and make appropriate decisions about their children. However, where children are being looked after by one parent, that parent needs to be in a position to take the day-to-day decisions that have to be taken while that parent is caring for the children. Parents should not be seeking to interfere with one another in matters, which are taking place while they do not have the care of their children. Subject to any questions which are regulated by court order, the object of the exercise should be to maintain flexible and practical arrangements whenever possible.

D v D makes it clear that a shared residence order is an order that children live with both parents. It must, therefore, reflect the reality of the children’s lives. Where children are living with one parent and are either not seeing the other parents or the amount of time to be spent with the other parent is limited or undecided, there cannot be a shared residence order. However, where children are spending a substantial amount of time with both their parents, a shared residence order reflects the reality of the children’s lives. It is not necessarily to be considered an exceptional order and should be made if it is in the best interests of the children concerned

These themes are reflected in to other two decisions. In Re A, there were three children, a boy and two girls. The girls lived with their mother and the boy lived with his father. The boy was unwilling to see his mother, and was not doing so. A Recorder made a shared residence order. The father applied for permission to appeal. Granting permission to appeal and allowing the appeal in part, the Court of Appeal set aside the shared residence orders. In so doing, Hale LJ said (at [2002] 1 FCR 177 at 181: -

In Re F a judge made a shared residence order in relation to two small children, notwithstanding the fact that the mother lived in Edinburgh, a considerable distance from the father’s home in England. The Court of Appeal, upholding her decision, said that such a distance did not preclude the possibility that the children’s year could be divided between the homes of two separated parents in such a way as to validate the making of a shared residence order. A shared residence order had to reflect the underlying reality of where the children lived their lives, and was not made to deal with parental status. Any lingering idea that a shared residence order was apt only where the children alternated between the two homes evenly was erroneous. If the home offered by each parent was of equal status and importance to the children an order for shared residence would be valuable.

Applying these cases to the instant case, it is plain that in terms of time spent in each home and the importance of each home to the children, this is a prime case for a shared residence order. Such an order directly reflects the situation on the ground.

I appreciate, of course, that a residence order in Mr. A’s favour would not, as a matter of law, diminish Mrs. A’s status as a parent, or remove her equal parental responsibility for the children. But it would, in my judgment, nonetheless be making a statement that although the children shared residence with her and their father equally, that fact was nonetheless not to be recognised in the court order.

If these parents were capable of working in harmony, and there were no difficulties about the exercise of shared parental responsibility, I would have followed Mrs. P’s advice and made no order as to residence. Section 1(5) of the Children Act 1989 requires the court to make no order unless making an order is better for the children concerned than making no order at all. Here, the parents are not, alas, capable of working in harmony. There must, accordingly, be an order. That order, in my judgment, requires the court not only to reflect the reality that the children are dividing their lives equally between their parents, but also to reflect the fact that the parents are equal in the eyes of the law, and have equal duties and responsibilities towards their children.

In addition, there is the risk, in my judgment, that a sole residence order in Mr. A’s favour is likely to be misinterpreted. Mr. A has already given a strong indication that this is the case. Whilst, as I have already indicated, I regard him as an honourable man, and one who will implement the 50-50 living arrangement, I have no doubt at all that he wishes to be in control, and believes that the arrangements between 30 December 2002 and now have only worked because he has had a sole residence order. That, he believes, is the reason why Mrs. A had not made any trouble.

I disagree with that analysis. This case has been about control throughout. Mrs. A sought to control the children, with seriously adverse consequence for the family. She failed. Control is not what this family needs. What it needs is co-operation. By making a shared residence order the court is making that point. These parents have joint and equal parental responsibility. The residence of the children is shared between them. These facts need to be recognised by an order for shared residence.

Section 91(14), which I do not need to set out, is a very flexible tool. The scope of the circumstances in which it can be used is extremely wide. I do not intend to add to the jurisprudence on it. The leading case is the decision of the Court of Appeal in Re P (Section 91(14) Guidelines)[1999] 2 FLR573.

In the instant case, an order under section 91(14) is sought by consent as a recognition of, and to underline the fact that this family has spent some six years in litigation and does not wish to litigate any more. An extremely clear, sensible, equal division of the children’s time between the homes of their mother and their father has been agreed. It is a regime with which the children are content and which meets their needs. It is the regime, which is to operate for the remainder of the children’s minorities providing there is no overwhelming supervening event, which renders it impossible to maintain.

The court has intervened. It has succeeded, latterly, to the extent of dispelling the allegations of impropriety against Mr. A. It has also, through the work undertaken by NYAS, achieved a shared care arrangement, which meets the children’s needs. The court has no further role to play, and the order reflects the fact that neither the parties nor the court believes that the parties should resort to it for the resolution of any further difficulties.

In my judgment, section 91(14) is broad enough to encompass these objectives. Section 9(6) of the Children Act 1989 requires the court to be satisfied that the circumstances are exceptional before it makes an order for residence extending beyond a child’s 16^th birthday. Exceptional is, of course, an elastic word, but I do not think I am stretching it too far in making the order sought in this case. Once again, it is part of the same message. This is the regime which is to last until the children attain their respective majorities. It is now up to Mr and Mrs A to exercise their parental responsibility responsibly.

I cannot leave this case without expressing my gratitude and admiration for the work done by NYAS and by Mrs. P in particular. As the narrative of events shows, she not only worked many unsocial hours and at weekends, but also produced reports of high quality with enormous speed. She was available to the children whenever she was needed, irrespective of the time of day or night. Hers was a paradigm of how a guardian should act.

This case demonstrates what can be achieved by intelligent and purposeful social work intervention. The courts cannot expect in every case a service of the quality given to it by NYAS in this case. CAFCASS Reporting Officers in any event have a much more limited role. CAFCASS guardians, no doubt, are more tightly restrained by budgets and workloads. But there is no doubt that the excellent service provided by NYAS in this case was crucial to its successful determination.

It is very often the case that contact has to be organised for weekends when no social worker or CAFCASS officer is available to supervise or oversee it. One particular point which could not fail to strike me in this case was that Mrs. P, by organising and attending contact at weekends, was able to play a role in re-starting contact between C and her father which simply could not have been achieved otherwise.