J and K (Children: Private Law)

This private law dispute demonstrates a number of phenomena. Firstly, that it is sometimes possible to achieve real and substantial progress as the result of the hearing itself. Secondly, that there can be incalculable benefits from the simple exercise of parents giving evidence and, just as importantly, listening to the evidence of others. Thirdly, that proceedings which begin in an atmosphere of adversity may swiftly evolve into an exercise in constructive collaboration. Fourthly, that protracted litigation over children is profoundly harmful to everyone concerned. And fifthly, that the involvement of skilled and insightful professionals – in this instance Miss Wiley, Ms Bushell and Mr Kirkwood – has immeasurable advantages in (a) achieving a better understanding of the genesis of past problems and (b) assisting parents to an infinitely more constructive way of working together for the benefit of their children.

The very sad reality is that for more than 10 years there has been court conflict between the parents of twins, now twelve and a half years old. Various issues have arisen – parental responsibility, contact (how much, how often, staying or visiting, the arrangements for collection and delivery), the children’s last names – but overall the battle has been about the role which their father should properly occupy in the children’s lives.

Between June 2003 when the father launched his first application and early November 2013 when the court file arrived on my desk in London, there had been no fewer than 24 hearings – initially at the Family Proceedings Court, then in the County Court.

Every one of the five District Judges who has sat and regularly sits at Reading had some involvement with the case, more than once in most instances.

Likewise, the litigation has occupied an unwarranted amount of time and resources for Cafcass – eight reports by six different Family Court Advisers.

On 8^th November 2013, having received a referral from District Judge Henson and after reading parts of the court file, I directed the parents to file short statements, limited to two pages, setting out their views as to why contact (a) had not occurred in accordance with the court order; and (b) had been an apparently unwelcome experience for the children. I listed the case for directions indicating that I would consider (i) the need for a fact finding hearing so as to better understand the reasons for the difficulties and inform ‘welfare’ decisions; (ii) contact arrangements; (iii) the potential for the children to move to live with their father and / or any other person; and (iv) the mechanism by which the proceedings might be brought to an end.

On 29^th November 2013, there was a directions’ appointment which resulted in the listing of this hearing. I spoke directly to both parents. I talked ‘tough’. I made clear to the mother, then represented by Solicitors and Counsel, that if I came to be satisfied, having heard evidence, that the children were being emotionally harmed as the result of her resistance to them having an ongoing, fulfilling and mutually rewarding relationship with their father then I would actively consider making changes to the residential arrangements. I also referred, if I’m not mistaken, to the potential for public law interim orders which could have required the children to move for a short period to live with foster parents in the event that I found the threshold for the making of such orders crossed.

Had I known then what I now know, I would not have been as robust. I have little doubt but that the impact upon the mother of what I said was considerable. She must have felt very anxious. But as well as accentuating the extent of my powers, I also made some practical proposals as to how the parents might interact with one another in their sons’ presence so as to make their transitions from one home to the other a less tense and a more enjoyable experience. In particular, I suggested that when the boys were dropped off and picked up each parent should be made welcome in the home of the other, invited to sit down around the kitchen table and offered a cup of tea (or similar).

Pleasingly, very pleasingly, against the background of the last 10 years, each parent reacted positively to that idea and it’s been good for the boys. The father, impressively, has taken the trouble to provide supplies of a particular health giving drink for the mother; and I’m sure the mother has been responding with similar thoughtfulness when he’s called in at her home.

Since the November hearing, according to the father, the contact order has been followed “to the letter”; more gratifyingly still, the boys have “gone from being hostile, even aggressive” towards him and his family “to playing and seemingly having fun...”

During the course of Monday morning – and at a time before Miss Wiley became involved – I asked the mother whether she agreed there had been improvements in contact since the November hearing. Her somewhat hesitant response was that so far she had not received any complaints.

A little later on Monday morning, I received hand written notes from the boys themselves under cover of a letter, sent by Special Delivery, from a female friend of the mother. The covering letter described that the boys had come to her home on 7^th February, so last Friday, at 5.40 pm. She “verified” that they had been left alone to write the enclosed letters “by themselves with no input or influence” by her or anyone else residing at her address.

K’s letter contained the following –

He does not “feel positive” about the weekend visits with “him” because he is not made to “feel safe;”

Previous visits at his father’s sister’s house “didn’t go very well;”

They, the boys, had been asked the “same questions every two weeks,” they had refused to stay over but “again they were still asked the same annoying questions;”

He would like to stay with his Mum and Dad (that is his step father) at home “with no more stress.”

Against the background of fragile recovery in the parents’ ability to interact with one another and also the quality of recent contact it was disappointing, to say the least, to receive such gloomy messages.

Turning from the recent past to the history, the essentials may be shortly summarised. The parents had an ‘on / off’ relationship for more than 12 years. They lived together but not all the time. Their relationship came to an end in December 2001 when the twins were less than six months old. The mother moved away from the family home in May 2003. The mother alleged domestic violence; the father denied any aggression or violent behaviour but agreed there were many arguments.

Court proceedings began in 2003 when the father applied for parental responsibility and contact. He did not know where the mother was living though there was an arrangement for him to meet with them (and the mother) in a local park. Later he saw the children in a contact centre.

Both parents became involved in new relationships. The mother has remarried. The father’s partner, D, is well known to the children. The maternal grandmother, who lives nearby the children’s home, has played an important part in their lives from the time of their birth. She has done a great deal, practically and emotionally, to help and support her daughter.

It would serve no useful purpose now to rehearse the various milestones along the way of what, unquestionably, has been a dismal decade of litigation history. It is sufficient to record that a few incidents during contact as well as at handovers have assumed an importance which, with the benefit of hindsight, was both unwarranted and disproportionate. More importantly, at the time and in the months even years that followed whichever incident, there was an evident willingness on the part of those who felt aggrieved to hold on to the sense they had been wronged.

It would have been infinitely preferable, as the adults now agree, to have made allowances for whatever behaviour it was that caused such affront, to have forgiven the transgressor and, perhaps most significantly of all, to have opened appropriate communication channels so as to deal with the problem.

This hearing developed in a way that no one could have predicted. The atmosphere on Monday morning was, predictably, adversarial. The mother did not have representation and applied for an adjournment which was refused. Some time was spent in trying to find a member of the Bar who might be prepared to act for her pro bono. I did my best but failed. Mr Kirkwood made inquiries within his Chambers but likewise without success. Miss Bushell in the spirit of helpful collaboration began by trying to locate a Mckenzie Friend. Those efforts came to nothing but she was able to enlist the assistance of Miss Francesca Wiley.

By the middle of Monday afternoon, Miss Wiley was in court and in possession of a bundle made available by Mr Kirkwood.

By Tuesday morning, having read the papers and having discussed the issues with the mother, Miss Wiley indicated there was a good prospect of an agreement. Notwithstanding such a positive development, it seemed to me that I would be shirking in my responsibility if I acceded to the implied suggestion that there may have been no need for oral evidence. My sense was that I could have been doing little more than applying a ‘sticking plaster’ to a deep and persistently infected wound without enabling the beginnings of adequate treatment.

Miss Wiley at once accepted it was appropriate for evidence to be given so that a judgment might ensue. She, in common with everyone else, recognised there was a fundamental need to analyse why problems had arisen and endured for so long; as well as to legislate for the future on the basis of a truly final order.

I heard the oral evidence of the children’s guardian, the father, the mother, her husband and the maternal grandmother. It became apparent, almost as soon as the family members’ evidence began, that their attitudes towards one another were by no means as hostile as had appeared from the papers. Just as importantly, it was obvious that the parents were listening intently to and seemed genuinely interested in everything being said. They seemed equally attentive when listening to various hypotheses posed from whichever quarter. I note in passing that the last time evidence was given was in January 2007 at the [named] Family Proceedings Court.

More or less throughout the evidence, there was an enduring sense, as the father said, of everyone being “exhausted, feel(ing) distressed, want(ing) the process to end and to ‘normalise’ the situation” for the boys.

Each of the family members readily grasped the opportunity to acknowledge that elements of their own behaviour had not assisted. They all expressed a ready willingness to seek to improve their interpersonal relationships for the future. The mother, to her very great credit, agreed that with hindsight she should not have asked for advice last week from someone unconnected with the case with the result that the boys were asked to write those letters. She has also, since last November and with very good effect, told the boys “they need to forgive” when they raise grievances about their father. The mother believes they, that is all the adults, should get together, sit down and discuss things. As she said, they “just want peace.”

The father readily accepted that it was impossible for him to say the mother had ‘poisoned’ the children against him and emphasised he had never used that word. He agreed she may have over identified with any complaints made by the children after contact, conceding she might have been, as Miss Wiley suggested, “a little bit weak.”

The mother’s husband, again to his credit, acknowledged that part of the problems may have arisen because the boys had been told too much about their mother being taken to court, about “attacks” upon her. He said that “certain things should have been done differently.”

The maternal grandmother’s view is that “the past should be left in the past. (They) have to forgive; and should move on.”

There were traces, just traces, that some of the concepts which have interfered with past progress, continue even now to intrude to an extent. But there again, it would have been unrealistic to expect anything else. The maternal grandmother’s plea to me and perhaps most of all to the father was that the boys should not be “hurt” again. She berated the father for having failed to say ‘Good morning’ to her at court on Wednesday morning; and yet she had not said anything to him either. The mother talked throughout her evidence about “visitation” rather than the part that the children’s father should be playing in their lives. Her husband spoke about his wife having been “dragged through the courts.” Some of the language used exemplifies the problems which have beset these proceedings. And yet, there was such ready willingness to think and interact differently on all sides.

I asked each of the parents and also Mr Bruton whether I should see the children. I emphasised that I had no intention of questioning them; that my purpose would be to apologise that for so long they had been caught in the middle of this dispute, to tell them what their parents had agreed about the way in which their father would participate in their lives, to listen to anything they wished to say as well as to answer any questions they might have.

Everyone agreed it would be ‘a good thing’ for the boys to come to London for such a meeting. I saw them together with Mr Bruton on Wednesday morning. My only regret about the visit was that I had not enquired, in advance, as to whether the boys did or did not like dogs. Had I known they do indeed, I would not have taken steps to banish my dog who usually plays such a valuable part in making everyone feel relaxed.

The meeting was a success. Both boys were quiet, respectful, polite and exceptionally well behaved. They are, as I said when I went back into court afterwards, a credit to both their parents and to everyone who has played a part in looking after them from earliest times. They listened intently to everything I said.

J is more reserved than K; he was able, after a little while, to ask me several interesting questions. I told them that one of the plans under discussion is that their parents, their mother’s husband and father’s partner might all have dinner together some time soon. They seemed surprised as indeed the maternal grandmother was when told about the proposal in evidence. In fact, to use the vernacular, she was ‘gobsmacked.’

I thanked the boys for their letters. J asked me what I had thought about them. I replied that they had made me sad.

Before lunch, on the final day of the hearing and prior to hearing submissions, I made clear I had no intention of making a suspended transfer of residence order – of the kind utilised by Jackson J in the case of Re M (Children) [2012] EWHC 1948 (Fam) – so as to buttress the agreed contact provisions. I indicated that such an order, which doubtless the mother would have perceived as punitive and oppressive, would have been inapposite if not positively harmful in the circumstances as they had evolved during the hearing.

Closing submissions concentrated upon the likely causes of the difficulties, informed by the evidence; as well as the most desirable way of consolidating the seismic shifts of attitude made possible by the hearing itself. I struggle to remember another case where the advocates’ closing remarks have been so unified.

Before I left court on Wednesday, the mother stood to tell me how much she had gained from the hearing. It was a moving and utterly sincere tribute not just for the way in which the hearing had unfolded but also because she expressed her fulsome gratitude – and very appropriately so – for the assistance she had received from Miss Wiley. More surprisingly perhaps, the mother also thanked Ms Bushell. But given her immensely constructive, understanding and very largely non adversarial stance it was easy to see why she did.

So why did things go so badly wrong for this couple such that there was serious and persistent disagreement even although there has never been a valid welfare argument against ongoing contact? Peeling away the layers of mistrust and antipathy has been both painful for the parents but also, I would say, illuminating. In addition, it has been, as Mr Kirkwood so rightly says, cathartic. And the best demonstration of that is the scene he witnessed at lunch time on Wednesday when all the family members were together in the coffee shop, standing around and chatting.

To revert to the reasons for the difficulties, I would identify the following as having contributed to the atmosphere of hostility. The twins were alarmingly small when delivered – less than 3 lbs each – and had to stay in hospital for 8 weeks. Their mother had been ill herself in the period prior to their birth. Thereafter, the boys were not physically robust for a couple of years. The mother, entirely understandably, was intensely protective of them as was their closely involved maternal grandmother. It must have been a time of enormous stress and anxiety for the whole family, particularly the mother whose attachment to the babies, of necessity, was of the most concentrated kind.

The father felt excluded to an extent though he would say he always did his best to support the mother and his children. During the twins’ first year, the long standing relationship between the parents ended. Doubtless there was disappointment and a sense of loss on both sides. Inevitably, the maternal grandmother would not have been inclined to give the father ‘a good press’ at that time or indeed in the years that followed. Clearly, she had views about his actions in the earliest months of the boys’ lives which were highly unflattering and, I would have to say, very hurtful to him.

In the years that followed, the father’s applications to court – his efforts to ensure he played a proper fatherly role in the boys’ lives – were seen as “attacks” upon the mother. Doubtless she was strongly encouraged, by successive CAFCASS officers and judges, to play her part in ensuring the smooth progress of a developing contact routine. Her husband and the children’s father are very different individuals. By trying to do right by her husband, there must have been times when she did wrong by the children’s father. She was criticised for the way in which contact handovers were undertaken at the children’s schools. She complained to various bodies when she believed her behaviour had been wrongly reported as having been confrontational. When a suggestion was made by Cafcass that her actions may have had a psychological or psychiatric component requiring of expert advice, she responded defensively. There was, as it is all too easy to see now, a downward spiral of alarming dimensions.

If there was one thing that the parents seemingly failed to do for all of the years they were in dispute, it was that they did not consider the impact upon the other – and the children themselves – of their actions. A prime example of that lack of empathy and its harmful impact was the regularly repeated performance at the children’s schools on a Friday afternoon when the handover was effected. It was easily done; and could, with the benefit of hindsight, have been so straightforwardly avoided as the mother conceded in evidence.

For his part, I have no doubt but that the father had not considered the repercussions for the mother and her very respectable, well ordered and closely governed family of repeated court appearances. I am sure they became almost too much for her to bear; and the impact upon the children was a sense that their mother was under attack. They are and were both incredibly loyal to and, said the mother’s husband, fiercely protective of her. He could see though that the boys would have been far better off had they not been inappropriately exposed to the detail of the adults’ dispute.

I am hopeful, very hopeful, that for the future similar mistakes will not be made; and that, as Ms Bushell suggested, the mother and her husband will be able to parent the boys authoritatively. There is very little which frightens children more than an absence of appropriate parental guidance and firm boundaries about the things in life which matter most.

The very last matter for comment is the extent to which each of the parents has been assisted by highly skilled, insightful and intuitive representatives.

Ms Bushell has acted as the father’s McKenzie friend. Her background is in social work; her experience of the family justice system as a former guardian is extensive. I had no problem in agreeing that she should perform the role of speaking for the father, asking questions of him and on his behalf. Ms Bushell explained that the father is a shy man who would have encountered considerable difficulty if left to conduct the advocacy on his own. Having seen him give evidence, I agree wholeheartedly with that assessment. He is also, unsurprisingly given what he had lived through, extremely emotional, and would not have managed the advocacy task unaided.

Miss Wiley is a member of the Bar with very considerable experience of high conflict private law disputes as well public law Children Act and inherent jurisdiction cases. She enjoys a reputation, deservedly, for diligence, economy, realism and innovative thought. She responded with immense generosity and in the very best traditions of the Bar when she accepted the invitation to act pro bono for the mother. Minor adjustments were made to the court’s sitting time on Wednesday to accommodate another one of her professional commitments in the High Court. Miss Wiley’s questions of her own client as well as of the father demonstrated just how well she understands the dynamics of a dispute of this kind. Her wisdom and emotional intelligence played a very large part in achieving so pleasing an outcome – not just as to the order itself but more importantly as to the shifts in attitude.

Both parents were fortunate indeed for the professionalism and legal assistance provided by each of their ‘representatives.’ But of greater significance still, it seems to me, they were in the hands of individuals unafraid to show kindness, generosity and with a desire to help others.

In the result, it gives me great pleasure to approve the draft consensus which provides that henceforward there is to be a shared residence order in favour of both parents. The boys’ weekends will alternate between the homes of their mother and father; school holidays and half terms will be divided more or less equally. The details will be worked out by the parents. They welcome without hesitation the firm message that this is the final order; that there is no need for any further court involvement and that any return to litigation would be a profoundly retrograde step. Thus, they are empowered to make the arrangements, whatever they might amount to, work.

That is my judgment; and it has been my privilege to participate in this most satisfactory of collaborative efforts.