Cdm v Cm

Hearing dates : 14 – 15 March 2002, 18–20 December 2002

Approved Judgment

This judgment in the form in which it was handed down may be reported. However, nothing must be published which in any way identifies the children or the parties or any witness whether by name or by location. The judgment in this form may be treated as authentic and no transcript need be taken.

Introduction

In this case, at the suggestion of the bar, I am taking a very unusual course. What follows is not one judgment, but two.

The case concerns two children, and was what has become known as an intractable contact dispute. In this instance, the residential parent had persuaded the children (quite falsely) not only that the non-residential parent had both physically and sexually abused them, but also that the non-resident parent's own parents, with whom the children had previously enjoyed a perfectly normal relationship, were also physical abusers and a threat to the children. The result was a cessation of all contact between the children, the non-residential parent, and the children's wider family on that side.

The solution I adopted in this case was an order under section 37 of the Children Act 1989 addressed to the local authority inviting it to consider taking care proceedings to enable an assessment of the children's relationships with their parents to take place under the aegis of an interim care order. I had come to the clear conclusion that the children were suffering significant harm in the residential parent's care. It had, furthermore, become clear that an assessment of the kind needed could only take place if the children were not in their own home

The local authority, as a result of its section 37 investigation, agreed with my analysis that the children were suffering significant harm in their residential parent's care, and began care proceedings. As it was impossible to conduct an assessment of the children at home, they were removed under an interim care order.

Within a very short space of time, and freed from the need to accommodate the residential parent's false belief system, the children rapidly resumed their relationship with the non-residential parent, in whose favour I later made a residence order. Their relationship with their former residential parent, however, remained problematic, as the second judgment shows.

I have decided to publish my two principal judgments in this case in order to demonstrate one method of addressing an intractable contact dispute. I am immediately conscious, of course, that the case turns on its particular facts, although the phenomenon it represents is by no means uncommon. This was the second time I had used the section 37 procedure to remove children who were being denied all contact with their non-residential parent, and were suffering significant harm because of the residential parent's false and distorted belief system about the non-residential parent, which the children had imbibed.

I am also conscious of the fact that there is a tendency in Family Law to see an outcome such as this as a panacea —a one size fits all solution. I emphasise that this is not the case, indeed, this judgment comes with a series of strong health warnings.

Firstly, of course, section 37, which I set out at paragraph 121 of this judgment, can only be used if the facts of the case meet its criteria. It must appear to the court that "it may be appropriate for a care or supervision order to be made" with respect to the children in question. In other words, at the very lowest, the court must be satisfied that there are reasonable grounds for believing that the circumstances with respect to the children meet the threshold criteria under section 31(2) —that is to say that the children are suffering or are likely to suffer significant harm. Section 37 is, accordingly, a well focused tool, to be used only when the case fits its criteria.

It is sometimes forgotten that the court has the power to make an interim care order when it gives a direction under section 37 (see Children Act 1989 section 38(1)(b)). The definition of "specified proceedings" (ibid s. 41(6)(b)) includes private law proceedings for contact or residence orders in which the court has given a direction under section 37(1) and has made or is considering whether to make an interim care order). In these circumstances a children's guardian must be appointed under section 41(1) unless the court is satisfied that it is not necessary to do so in order to safeguard the children's interests.

In the instant case, the children were already represented by CAFCASS Legal when I made the section 37 direction. Had they not been, I am in no doubt that I would have appointed a guardian to represent them.

Although this case is but an example, it does seem to me that it is possible to extract some general considerations of wider application from it. I put these forward tentatively, as each case is different, and what fits one may not fit another. Some points are self-evident, but need stating nonetheless. I will state them in short form and then expand on them where necessary

1. The court must be satisfied that the criteria for ordering a section 37 report are satisfied (see paragraph 8 above)

2. The action contemplated (removal of the children from the residential parent's care either for an assessment or with a view to a change of residence) must be in the children's best interests. The consequences of the removal must be thought through: there must, in short, be a coherent care plan of which temporary or permanent removal from the residential parent's care is an integral part.

3. Where, as here, the allegation is that the children have been sexually or physically abused by the absent parent, the court must have held a hearing in which those issues were addressed, and findings made about them (see paragraph 12 below).

4. The court must spell out its reasons for making the section 37 order very carefully, and a transcript (or a very full note) of the judgment should be made available to the local authority at the earliest opportunity (see paragraphs 13–14 below).

5. The children should be separately represented (see paragraphs 15–16 below).

6. Preferably, the section 37 report should be supported by professional or expert advice (see paragraph 17 below).

7. Judicial continuity is essential. Apart from saving time and resources, this means that applications can be made to the judge at short notice, and she or he can keep tight control over it.

8. Undue delay must be avoided (see paragraphs 18 and 19 below).

9. The case may need to be kept under review if (as in the instant case) the decision of the court is to move the children from one parent to another (see paragraphs 20 and 21 below).

Findings of fact

In the instant case, the residential parent asserted that the children had been sexually and physically abused by the non-residential and the latter's parents. This was not true. I was, however, only able to proceed on the basis that it was not true because there had been clear and compelling findings by an experienced circuit judge, and I was able to confirm those findings by the evidence I heard. It is, in my judgment, very important that the local authority should know the court's findings, and prepare its report on t he basis of those findings. In an intractable contact dispute, where the residential parent is putting forward an allegedly factual basis for contact not taking place, there is no substitute, in my judgment, for findings by the court as to whether or not there is any substance to the allegations.

Letting the local authority know the reasons for making the order

In my judgment it is vital for the local authority to know the judge's thinking in making the order. Even if such an order is made urgently, a note of the reasons for it should, in my judgment, be prepared and made available to the local authority. Apart from anything else, clear reasons for the order save a great deal of time, and enable the local authority to focus on the salient points. In the instant case, I reserved judgment and shortly afterwards handed down the first of the two judgments set out below in a form designed to be read by both the parties and the local authority. In its original form, the first judgment was cross-referenced to the court bundles which were also disclosed to the local authority. Such a course may not be practical in other cases, particularly where the report is urgently required. However, it is not enough in my judgment for the local authority simply to be told the judge has ordered a section 37 report. The local authority needs to know why the judge has done so.

It is prosaic thought, but when making a section 37 order the court should be clear about how the order is going to be communicated to the local authority and by whom. There is nothing more likely to cause delay than the absence of a speedy mechanism for conveying the order to the local authority. I have on at least one occasion written short reasons, told the bar what they were, and then sent them by facsimile to an identified officer of the local authority.

Separate Representation

It is my view that one of the prime categories for the tandem model of separate representation in private law...