F v M; Re D
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Munby |
| Judgment Date | 01 April 2004 |
| Neutral Citation | [2004] EWHC 727 (Fam) |
| Court | Family Division |
| Date | 01 April 2004 |
In the Matter of D (dob 2 August 1996)
[2004] EWHC 727 (Fam)
The Honourable Mr Justice Munby
IN THE HIGH COURT OF JUSTICE FAMILY DIVISION
(In Open Court)
Royal Courts of Justice
Strand, London, WC2A 2LL
The names of counsel and solicitors are omitted in the interests of the parties’ anonymity
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.
Mr Justice Munby
1. On 11 November 2003 a wholly deserving father left my court in tears having been driven to abandon his battle for contact with his seven year old daughter D. She was born on 2 August 1996. That battle had lasted for precisely five years. It was on 11 November 1998, a matter of days after the parties separated on 2 November 1998, that mother petitioned for divorce and on the very next day that she began proceedings for a residence order. From almost the moment when the parties separated there were problems about contact. As matters stand today, direct contact has ceased – it has not taken place since 20 October 2001 and father has not even seen his daughter since 1 December 200Such indirect contact as is taking place is far from satisfactory.
2. From father's perspective the last two years of the litigation have been an exercise in absolute futility. His counsel told me that father felt very let down by the system. I was not surprised. I make no apology for repeating here in public what I then said in private:
“He is entitled to. … I can understand why he expresses that view. He has every right to express that view. In a sense it is shaming to have to say it, but I personally agree with his view. It is very, very disheartening. I am sorry there is nothing more I can do.”
I also said this:
“I think there are lessons to be learned from this and I think this is, if for father a heartbreaking occasion, an opportunity [that] in the wider public interest requires to be seized. … He has nothing, so far as I can see, to reproach himself with. The system has failed him. … I feel desperately, desperately sorry for him. I am very sad that the system is as it is. That is why, as I have said, I am going to give a judgment dealing with the wider aspects of this.”
3. I now hand down this judgment in public as a contribution to what Wall J in A v A [2004] EWHC 142 (Fam) at para [22] referred to as “the ongoing debate about the role of the courts in contact and residence disputes.” I repeat what I recently said in Re B, Kent CC v B [2004] EWHC 411 (Fam) at para [99]:
“In my judgment, the workings of the family justice system and, very importantly, the views about the system of the mothers and fathers caught up in it, are, as Balcombe LJ put it in Re W (Wardship: Discharge: Publicity) [1995] 2 FLR 466 at p 474, “matters of public interest which can and should be discussed publicly”. Many of the issues litigated in the family justice system require open and public debate in the media.”
And I draw attention to what the President said in the administrative directions that she issued on 28 January 2004 in the wake of the Angela Cannings case (see Re B at para [14]):
“It is also worth giving consideration to increasing the frequency with which anonymised family court judgments in general are made public. According to current convention, judgments are usually made public where they involve some important principle of law which in the opinion of the judge makes the case of interest to the law reporters. In view of the current climate and increasing complaints of ‘secrecy’ in the family justice system, a broader approach to making judgments public may be desirable.”
I respectfully, and emphatically, agree.
4. Those who are critical of our family justice system may well see this case as exemplifying everything that is wrong with the system. I can understand such a view. The melancholy truth is that this case illustrates all too uncomfortably the failings of the system. There is much wrong with our system and the time has come for us to recognise that fact and to face up to it honestly. If we do not we risk forfeiting public confidence. The newspapers – and I mean newspapers generally, for this is a theme taken up with increasing emphasis by all sectors of the press – make uncomfortable reading for us. They suggest that confidence is already ebbing away. We ignore the media at our peril. We delude ourselves if we dismiss the views of journalists as unrepresentative of public opinion or as representative only of sectors of public opinion we think we can ignore. Responsible voices are raised in condemnation of our system. We need to take note. We need to act. And we need to act now.
5. I have handed down, in private, judgments dealing with those aspects of the case that ought to remain private. I now hand down this further judgment in public. I have anonymised it so that the parties will not be identified or in any way traceable. For that reason, because to name them would reveal where the parties come from, I have also anonymised the District Judges and Circuit Judges who dealt with this case in the County Court before it was transferred up to the High Court.
6. The history is most conveniently set out in tabular form, attached as an Annexe to this judgment. The Annexe is long but I make no apologies for that. The history of the case is long – too long – and it is important that those who wish to ponder the implications of this judgment should have available to them proper details of what has happened. In due course I shall return to the Annexe in order to draw from it the lessons that I believe need to be learnt. But first I must flesh out in a little more detail some of the salient features of the litigation. What follows is taken in large part from the two judgments that I have given in private.
7. This case raises issues some of which have recently been considered by Wall J (as he then was) in three important judgments: Re M (Intractable Contact Dispute: Interim Care Order) [2003] EWHC 1024 (Fam), [2003] 2 FLR 636, Re O (A Child) [2003] EWHC 3031 (Fam) and A v A [2004] EWHC 142 (Fam). Re O received much publicity, not all of it accurate. Wall J's three judgments require to be read together. Not merely do they contain a number of immensely valuable and important insights and lessons which are of general application; they neatly illustrate three different types of what are conventionally called intractable contact disputes. At the risk of some over-simplification it can be seen that in Re M it was the mother who was primarily responsible for the problems, in Re O it was the father, and in A v A both parents shared the responsibility. The cases also illuminatingly illustrate different techniques for attempting to resolve disputes of this kind. In all three cases the mother was the residential parent. In Re M residence was transferred to the father by means of an interim care order followed in due course by a residence order; in Re O the father's contact was stopped; in A v A a joint residence order was made.
8. I agree entirely with everything said by Wall J in those three cases. I wish, however, to emphasise two points in particular and I can do no better than to repeat what he said in Re O. The first is the vitally important point he made at para [6] in a passage endorsed by the President in Re S (a child) (contact) [2004] EWCA Civ 18, [2004] 1 FCR 439, at para [23]:
“The courts recognise the critical importance of the role of both parents in the lives of their children. The courts are not anti-father and pro-mother or vice versa. The court's task, imposed by Parliament in section 1 of the Children Act 1989 in every case is to treat the welfare of the child or children concerned as paramount, and to safeguard and promote the welfare of every child to the best of its ability.
Unless there are cogent reasons against it, the children of separated parents are entitled to know and have the love and society of both their parents. In particular, the courts recognise the vital importance of the role of non-resident fathers in the lives of their children, and only make orders terminating contact when there is no alternative.”
As the President said in Re S at para [19], “mothers and … fathers have equal rights before the court.” That, of course, is true, and it is a message that needs to be repeated and understood. But what is also true is that there are far more non-resident fathers than non-resident mothers. As the President acknowledged in Re S at para [20],
“In practice, after separation, the majority of children remain with the mother who is, for that reason, the more likely parent to seek a residence order. The father is, for the same reason, the more likely parent to seek a contact order.”
So that when the system fails – and fail it does – it is disproportionately fathers and not mothers who find themselves, as well as the children, the victims of that failure.
9. The second point is that made by Wall J when he went on to say:
“The court system for dealing with contact disputes has serious faults, which were identified and addressed in Chapter 10 of the report of the Children Act Sub-Committee (CASC) of the Lord Chancellor's Advisory Board entitled Making Contact Work. … In particular, the court process is stressful for both parents and children, it is expensive for those who are not publicly funded; it is slow and adversarial. It tends to entrench parental attitudes rather than encouraging them to change. It is ill adapted to dealing with the difficult human dilemmas involved, notably when it comes to the enforcement of its orders.
Parents must, however, take their share of responsibility for the state of affairs...
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