F-D v The Children and Family Court Advisory Service
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Bidder,His Honour Judge Bidder QC |
| Judgment Date | 11 June 2014 |
| Neutral Citation | [2014] EWHC 1619 (QB) |
| Docket Number | Case No: HQ2X00408 |
| Court | Queen's Bench Division |
| Date | 11 June 2014 |
[2014] EWHC 1619 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Handed Down at Cardiff Civil Justice Centre
2 Park Street Cardiff CF10 1ET
His Honour Judge Bidder QC
SITTING AS A DEPUTY HIGH COURT JUDGE
Case No: HQ2X00408
The Claimant was unrepresented
Adam Weitzman (instructed by Penny Logan, Principal Lawyer, Cafcass Legal Services) for the Defendant
Hearing dates: 3 rd to 7 th inclusive, & 11 th March (2014)
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
His Honour Judge Bidder QC
Although the parties addressed me at the beginning of the case about the anonymisation of this judgment to avoid the possibility of distress or psychological harm to the child referred to extensively in this case, they did not take the opportunity at the end of the case to make further submissions. At the handing down of this judgment or at a later hearing if the parties cannot agree on the issues of costs and any ancillary matter, including the extent of anonymisation, if any, and the terms of the order, I shall hear further argument. However, for the time being, I am satisfied that the need to protect the child's right to a private and family life requires the anonymisation of this judgment, to this extent, that the child shall be known as R and the Claimant's unusual name will be referred to in the title of the case and throughout as F-D. I have referred through out to the child's mother as "the mother" or "M" and will give initials for the courts involved in the family proceeding.
In this action the Claimant claims damages against the Defendant service for negligence, misfeasance in public office, and for a breach of his right to a family life under article 8 of the European Convention of Human Rights and under the Human Rights Act 1998.
The action arises out of a most unhappy dispute between the Claimant and his former wife over residence and contact with their now 16-year-old son, R. The Claimant claims that as a result of the negligent advice and support given by Cafcass and, in particular, its duty officer at a hearing on 3 February 2009, namely, a family support worker (FSW), Mrs Eileen Ford, the Court made an order which effectively deprived him of continuing contact with his son. Thereafter he contends that the Defendant failed to attend a directions hearing and failed to take timely steps to prepare a welfare report which he contends would have supported his claim for contact. As a result of the behaviour of Mrs Ford at the hearing of 3 February, the Claimant made a formal complaint to Cafcass. As a result of the delays, both in the preparation of the report and in the dealing with his complaint, coupled with delays by the court, he says that he lost heart and withdrew his application for residence and contact.
He says that the same negligent behaviour which he particularises in his Particulars of Claim also amounts to misfeasance in public office and also disproportionately breached his right to private and family life under article 8.
He has not seen his son nor has his son seen him since 12 October 2008. On any account that is a tragedy for him and it is arguable that it also represents a tragedy for his son.
The Claimant's case, which he presented himself without representation and with considerable ability, depends on following a chronological analysis of events which he calls his "timeline". To do justice to his case, I will set out events in a similar chronological fashion.
On 10 September 2004, His Honour Judge Caddick made a detailed contact and residence order in relation to R, which order can be found in the Defendant's bundle 1 page 266. It included staying contact. Such contact was regularly exercised by the Claimant until 12 October 2008. All that need be said at this stage about that day is that there was a heated dispute between the Claimant and R's mother, wife referred to as M hereafter. The dispute was over the arrangements for the Claimant to pick up R for contact. It descended into an argument on the doorstep of the Claimant's house. There are and were different accounts given by the Claimant and his wife about what happened. Both parties alleged some physical violence used by the other against them and it is common ground that R witnessed what happened. The Claimant has a new partner and young children. They too witnessed the argument. It would be understandable if they and R found it distressing. It appears that both the Claimant and M reported each other to the police although there were no criminal proceedings.
On 23 October 2008 the Claimant applied for a non-molestation order against M under the Family Law Act 1996. On the same day, he made an application under section 8 of the Children Act 1989 for contact with R, contact having ceased after the altercation on 12 October. The application can be seen at D1 pages 260 to 265. It should be noted that it was an application to reinstate contact and not to enforce the 2004 order. The Claimant was represented in the proceedings. It would have been possible to attempt to enforce the 2004 proceedings.
It is clear that M's stance at that time and thereafter was that R did not want contact with the Claimant. She also applied, but much later, probably not before May 2009, for a non-molestation order against the Claimant. She alleged that he had used violence against her on 12 October. The Claimant disputed that.
The Claimant gave me detailed evidence consistent with his two written statements about the events on 12 October but it would not be helpful for me to summarise his evidence here. It can be found in his statements and I have not heard the mother. Also before me was the Claimant's statement in the Family Law Act proceedings and also the later statement by M. There are allegations and counter allegations about the behaviour of each party. M makes allegations of previous aggressive behaviour by the Claimant which he denies. There are slightly different versions of the incident on 12 October. The important matter for the purposes of the hearing of 3 February, which is the critical hearing as far as these proceedings are concerned, is that each side was alleging violent conduct by the other in front of R although the physical violence alleged was quite minor.
After that incident contact did not take place in the following week and, according to the Claimant, M became difficult about contact, saying that R did not want to see the Claimant. The Claimant said he was concerned about his own family and therefore informed the police and made an application for a non-molestation order. It is likely that those actions by the Claimant increased the tension between the parties. The Claimant described their relationship as an acrimonious one and that seems to me to be accurate.
The Claimant said that he had been very keen for the court to give a date for the first hearing and I accept that he phoned the court and was told that there were delays for two reasons, namely that the court was busy and that Cafcass was busy. The Cafcass office covering the B Court was the Croydon office, a particularly busy office. The statistics suggest that the difficulties faced by Cafcass were worse in the London area.
The first listing of the application under the Children Act was on 3 February 2009. It was a hearing known as a First Hearing Dispute Resolution Appointment (FHDRA). It was a first hearing because the application was not to enforce the original contact order.
The application was in the form C1 (Claimant's bundle 1 page C1). It is to be noted that the application refers to the previous order made in 2004. Mrs Ford indicated to me that the duty officer for the FHDRA would have a file or docket which the Cafcass business support unit would prepare. She would be given that on the night before the hearing and would read it then or in the morning. The court would send Cafcass the Court list together with such documentation as the court had (in this case, the C1). I accept her evidence that the business support unit were responsible for making "safeguarding checks", that is, checks with the police and with the local social services department to see whether there had been any previous involvement with the child.
The hearing of the 3 rd February was, of course, ordered by the County Court. I have been told by Mrs Parsons, who has been an assistant director of the Defendant, and I accept, that the period that elapsed between the Claimant's application for contact and the first hearing was not exceptional although a much shorter timescale is now prescribed under the current private law programme. The fixing of the FHDRA was a matter for the court although they would take into account the availability of Cafcass duty officers and the capacity of Cafcass to report.
The target window for the FHDRA was, under the guidance issued by the President of the Family Division extant at the time of 3 February 2009 hearing (exhibit SJP4 to Mrs Parsons' statement) 4 to 6 weeks from the issue of the application and was, ultimately, the responsibility of the Designated Family Judge responsible for each family hearing centre.
I also accept the unchallenged evidence of Mrs Parsons, supported by the statistical graphs exhibited to her statement, that is, at the time when the Claimant issued his application, and in 2009, Cafcass was subject to an unprecedented demand for its services. I accept the statistics referred to in paragraph 5 of her statement. The large rise in public law work was partly, though not exclusively,...
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