CW & Ors v TW

This case is about two sisters. OW and YW. O is 12 and Y is 10. Both girls are highly intelligent and, according to their Head Teacher high achievers both academically and athletically. He also described the girls to the NYAS representative in May last year as “very happy and settled”. NYAS (the National Youth Advocacy Service) represents the girls in the proceedings.

O and Y have the misfortune to be the children of parents who have separated, and whose relationship is now such that there is no communication between them, and no trust. They live with their mother (CW), and have no direct contact with their father (TW). I shall briefly examine the reason for this sad state of affairs in just a moment.

I first heard the case in Portsmouth in November 2010, when it was transferred to the High Court for me to deal with a particular aspect of TW’s behaviour. On that occasion, CW also wished to apply for TW’s committal to prison for various alleged breaches of orders and undertakings, and TW wished to appeal against an order made by district judge Hurley.

I made an order banning TW from the County of Wiltshire save for specified purposes. Given the draconian nature of the order, however, I decided that TW should have the opportunity to provide evidence to modify it or set it aside. I also took the view that neither the appeal nor the committal application was ready for hearing, and I therefore adjourned all three matters over to January in London.

O and Y’s paternal grandparents, Mr and Mrs. CHW and BAW then issued an application for direct, as opposed to indirect contact with the girls. District Judge Hurley thereupon wrote to me, and I decided that it would be sensible to deal with that application, along with the others, at one hearing. At the time I issued that direction I did not realise that the date coincided with a holiday abroad which the grandparents were due to take. Rather than seek an adjournment, I understand that they curtailed their holiday, thereby depriving themselves of its benefits and losing a substantial sum of money. I was sorry to learn this, but take it as an illustration of the importance which they attach to the question of their contact with the girls.

In the event, TW was neither present nor represented before me at the hearing in January. CW and the paternal grandparents were in person. The children were represented by NYAS. In these circumstances, and in the absence of any evidence from TW, I retained the order banning TW from Wiltshire, and for the avoidance of doubt I propose to dismiss his appeal against district judge Hurley's order. The two issues on which I need to rule are, accordingly; (1) CW’s application to commit TW to prison for contempt; and (2) the paternal grandparents’ application for direct contact.

Before I do so, however, I wish to explain why I have taken a few days to re-read the papers, to make up my mind and to formulate my reasons. I also wish to explain, both to the parties and to the public at large why I regard this case as important, and why, in an anonymised form, I propose to place it on the Bailii website.

Although it can be argued that the care taken over this case by the circuit bench is disproportionate, it nonetheless represents the type of difficult family case with which the circuit and district benches are wrestling day in and day out. It does not contain any point of law, and is not reportable. It is of acute importance to the parties, but of little public interest. The parties are not “personalities” or otherwise in the public domain, yet the case is an intractable contact dispute of a type which represents a major aspect of the work undertaken by the circuit and the district bench. Those who criticise the family justice system for the superficiality and “knee-jerk” nature of its judgments would do well to read what follows.

One of the problems in the case – and I hope the paternal grandparents will appreciate that I do not say this lightly – is that they are not – as grandparents often are (and in my view usually should be) - above the fray. They are part of it. They believe passionately that their son, the children’s father – has been badly treated, and that even if, on occasions, he has behaved badly, he is the victim of maternal intransigence, judicial self-importance and poor judgment.

In this, they are simply wrong. Any objective readers of these papers would come unhesitatingly to the following conclusions: -

that the children’s father has brought the situation in which he currently finds himself entirely upon himself;

that the judges who have dealt with this case; (a) are right; (b) have been deeply reluctant in the long term to cut the children off from contact with their father; but (c) have been left with no alternative; and

that the paternal grandparents, by their partisan attitude are in danger of making the children’s situation more difficult rather than easier.

I am not so naïve as to expect attitudes to charge overnight, or critical judicial findings suddenly to be embraced with enthusiasm. But as I pointed out to Mrs. BAW, the paternal grandmother when she was giving her evidence, an objective observer would see that the case has been approached by the judges thoughtfully and carefully throughout; that, after an initial glitch, it began with abundant contact between father and children. Furthermore, it should have been recognised that the children are living with their mother, who should have been supported in their care rather than faced with regular and potentially destabilising applications that they should live elsewhere. Finally, the grandparents should have realised that the father’s beliefs that the children are being abused (amidst other irrational beliefs held by the father) have been investigated and found to be groundless. Both the father and the paternal grandparents must acknowledge the authority and the function of the court.

Let me assure Mr. CHW and Mrs. BAW of some basic propositions. The first is that O and Y’s welfare is the court’s paramount consideration. Secondly, that judges do not deprive separated parents of contact with their children lightly or for no good reason. Thirdly, that children have rights, just as much as adults to respect for their family life. Fourthly, I will only make a contact order in their favour if I take the view that it is in the interests of the children for such contact to take place. I fully understand, as Mrs. BAW told me that she is “desperate” to see her grandchildren, But that is not the test. The test is whether it is in the interests of the children for such contact to take place, and as the later part of this judgment will make clear, the grandparents’ wholesale support for their son and their hostility to the children’s mother are strong pointers against contact.

The parties may not know this, but the two judges who have, hitherto, dealt with their case are amongst the most thorough and conscientious in the country. I have great respect for their judgment. That is not, of course, to say that neither can be wrong. I have, in the past, when sitting in the Court of Appeal overruled both – Judge Bellamy, indeed, on one aspect of the instant case. However, I have taken the opportunity in the instant case to re-read their judgments. I invite Mr. CHW and Mrs BAW to do that same, and to try to put themselves in the position of the objective observer coming to the case for the first time.

It would be otiose for me to traverse the previous judgments in his case. I can but hope that the grandparents will re-read them with my observations in mind. I cannot, however, pass by without noticing the following; (1) what Ward LJ (perhaps the most sympathetic to fathers of all the members of the Court of Appeal) said so presciently as long ago as 17 May 2005 – see paragraphs 17 and 18 of his judgment; (2) paragraph 4 of Judge Bellamy’s judgment of 4 July 2005; (3) paragraph 26 of my judgment in the Court of Appeal dated 10 October 2006 – and the sequel in Judge Bellamy’s judgment on 17 July 2008.

Since the case had been transferred to the South West, it has been dealt with by Judge Meston QC. I referred earlier in this judgment to the care being taken over the case by the circuit bench as arguably disproportionate. In a sense, this is a compliment to Judge Meston. His numerous judgments in the case are models of clarity. His findings are irreproachable. He has analysed the evidence with enormous care and attention to detail. His conclusions in relation to the father are unimpeachable. Mr CHW and Mrs. BAW must appreciate that they are the basis from which I approach this case.

I heard this application first. I make it clear that it has no connection with the paternal grandparents’ application for contact.

I have been unable to find a formal committal summons in my papers. I make it clear that I regard this as a serious procedural defect. I am very conscious that the alleged contemnor is acting in person, with all that this entails. At the same time, I am entirely satisfied that he has been fully notified of the allegations against him, and has had abundant opportunity to meet them. Not least is the fact that in November 2010 in Portsmouth I adjourned the hearing of the committal summons to January 2011 in London partly at least to give the father time to assemble any evidence he wished to call.

I bear in mind that CW is also acting in person. There is, however, abundant authority for the proposition that what matters in committal proceedings is justice, and that provided procedural technicalities do not interfere with the overall justice of the case, they can be overlooked.

Although CW alleges a course of contumelious conduct by her former husband, I am only concerned with one incident about which I heard direct evidence. I remind myself that I have to be satisfied to the criminal standard of proof (beyond reasonable doubt) that the father has breached either a positive order of the court not to undertake a particular act, or an undertaking given by him to the court not to do so.

By paragraphs 9 and 10 of Judge Meston’s order dated 3 December 2009: -

The father (name given) shall not enter or attempt to enter or approach the school attended by the children until further order; …..

The father (name given) shall not attend or approach any event, activity or venue where the children (or either of them) are likely to be…….

Both orders are accompanied by a notice, in upper case, warning the father that if he does not obey the directions contained in the order, he will be in contempt of court and may be sent to prison - added to which paragraph 11 of the order make express reference to the attachment of a penal notice to paragraphs 9 and 10 of the order.

I heard oral evidence from two police officers, one of whom was Matthew Holland I also heard from the mother’s cohabitee (Mr B), who had sworn an affidavit. Matthew Holland had made a statement which he confirmed. He both saw and spoke to the father on the morning on 20 October. He was unequivocal in his evidence that the father had stopped his car about 35 metres from the entrance gates to the school; Mr B’s evidence was to similar effect.

Furthermore, as CW points out, the father, in a statement in the proceedings made on 23 November 2010 admits being present although both Mr. Holland and Mr. B denied the father’s version of what is alleged to have been said by each during the incident.

In these circumstances, applying the criminal standard of proof, I am in no doubt whatsoever that on 20 October 2010 the father was in breach of paragraph 9 of Judge Meston’s order of 3 December 2009 and was thereby in contempt of court.

I am not minded to make any further findings, whatever my suspicions might be. I remind myself of the need for strict proof and the need to satisfy the criminal burden of proof.

I also remind myself that in Hammerton v Hammerton [2007] Civ 248 [2007] 2 FLR 1133, Moses LJ and I were highly critical of a circuit judge who sentenced a litigant in person to three months imprisonment without (inter alia) hearing mitigation - see paragraph 20 of Moses LJ’s judgment. I have therefore come to the conclusion that I should sentence the father on a date to be fixed. I should warn the father that, unlike Mrs. BAW I do not regard the breach which I have found as trivial, and I strongly advise the father to attend on the date fixed for sentence.

I have found this very difficult. One the one hand there is a powerful case for saying that the children should be in touch with the paternal side of their family. On the other is the fact that – as they presented to me – the grandparents are entirely in the father’s camp. They are bitterly hostile to the children’s mother, and as recently as December 2009 referred in terms to their son’s “everlasting ordeal”; the “onslaught of false allegations against him”, and of his “torture” by the police. They accused the children’s mother of “cruelty” and of the intention to stop their son’s contact with his daughters. How could contact with such grandparents be in the interests of the children?

Judge Meston did in fact carefully consider direct contact with the paternal grandparents in his long and careful judgment dated 31 August 2010. Having (in my view rightly) rejected the paternal grandmother’s application for a residence order – it should never have been made - he went on to consider the question of contact. He described Mrs. BAW as a “devoted grandmother with an established connection with the children”. He rejected the “Trojan Horse” argument advanced by NYAS, but was sufficiently concerned by the relationship between the paternal grandmother and the father to limit contact to indirect contact only.

I have to say that I was taken aback by the grandmother’s oral evidence to me. She was asked to put forward her case for contact with the girls. Instead, she launched into an impassioned defence of the father, even though she must have realised that by doing so she was not advancing her cause.

The position adopted by NYAS on the children’s behalf had been that it might be possible to arrange contact between the girls and their paternal grandparents but that (1) it would have to be in a contact centre; (2) it would have to be supervised; and (3) it would in every sense have to be independent of the father. Thus it would not only have to take place in his absence, but his absence from the vicinity or from telephone contact would have to be guaranteed.

l think that Mr. Boyd, counsel instructed by NYAS was as taken aback as I was by the vigour of the grandmother’s defence of her son. It has given me much pause for thought. What these children currently need above all else is not to be embroiled in the fray. Their parents’ disagreements and their father’s conduct is not their responsibility. Grandparents usually have the capacity to deliver the vital quality of normality. They are normally outside and above the fray. They can provide a haven for children whilst, at the same time, keeping them in touch with the absent side of their family. But can these grandparents do this?

I have, in the end, come to the conclusion that they can, and I have reached that conclusion, albeit hesitantly, for two allied reasons. The first is that I believe Mrs. BAW to be a fundamentally honest woman, who recognises that – were contact to take place freely at or near her home – she would find it impossible to keep the father away. Secondly, I think that Mrs. BAW recognises the harm that the children may suffer if she seeks to proselytise the father’s case to the children. I may be wrong about that. I hope I am not.

In any event, I propose to proceed with caution. Mr. Jones must see the children again. If he is satisfied that it is still in the interests of the children to see their grandparents, he has liberty to arrange a single visit of not more than two hours duration at a contact centre in Wiltshire on a date to be fixed. The father is not to be physically present either at the contact or in the vicinity or by means of a telephone. The contact is to be supervised. I am not going to dictate what can and cannot be discussed, but the objective is that the contact should be a re-introduction of the children to their grandparents as neutrally and as naturally as the ambiance permits.

After that visit, the matter must return to court. I would welcome, and direct, a fresh report from Mr Jones. I will, for the time being, retain the case in the High Court and reserve it to myself. I have made enquiries, and in the interests of the children the contact centre in question in Wiltshire, which normally only takes referrals from the Court and Families Advisory and Support Service (CAFCASS) will agree to a referral from NYAS.

I will also give the parties liberty to apply in case Mr. Jones takes a negative view and the grandparents wish to proceed. If this happens, Mr. Jones should report explaining why he had taken the view he has.