F1 and F2 v M1 and M2 (1st & 2nd Respondents) A and B (by their Guardian) (3rd & 4th Respondents)
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr. Justice Cobb |
| Judgment Date | 31 July 2013 |
| Neutral Citation | [2013] EWHC 2305 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD08P01237 |
| Date | 31 July 2013 |
[2013] EWHC 2305 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Cobb
Case No: FD08P01237
and
Robin Tolson QC (instructed directly under the Bar Council Public Access Rules) for the Applicants
Paul Storey QC (instructed by Baxter Harries) for the First and Second Respondents
Maggie Jones (instructed by Bindmans) for the Third and Fourth Respondents (children)
Hearing dates: 8–12, and 31 July 2013
This judgment was handed down in private on 31 July 2013, and published in a redacted form (removing identifying features of the family) on 24 October 2014 together with
EWHC 4150 (Fam)
EWHC 818 (Fam)
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
For ease of reference:
The Honourable Mr. Justice CobbF1 = The First Applicant
F2 = The Second Applicant
M1 = The First Respondent
M2 = The Second Respondent
A = The older child (aged 12)
B = The younger child (aged 8)
Introduction
Making contact happen and, even more importantly, making contact work is one of the most difficult and contentious challenges in the whole of family law.
The opening sentence of this judgment (in §1 above) is borrowed from the speech of Baroness Hale in Re G (Children) [2006] UKHL 43; [2006] 2 FLR 629 [2006] 2 FLR 629 §41. Time and again, that opinion is to be found throughout the library of family law reports, spanning very many years. Were it helpful to isolate a few other cases which contain that important message, I would select the judgments of Munby J (as he then was) in Re D (Intractable Contact Dispute: Publicity) [2004] EWHC 727 (Fam) [2004] 1 FLR 1226 and Sir Nicholas Wall in Re M (Intractable Contact Dispute: Interim Care Orders) [2003] EWHC 1024 (Fam), [2003] 2 FLR 636, Re O (Contact: Withdrawal of Application) [2003] EWHC 3031 (Fam), [2004] 1 FLR 1258 and Re R (Residence) [2009] EWCA Civ 358, [2009] 2 FLR 819.
This case, concerning two girls, namely A aged 12 and B aged 8, vividly illustrates Baroness Hale's observations (above). Sadly, as will be apparent from this judgment, given the depth and complexity of the issues, and the polarisation of views within the family, the case has transformed from a dispute about contact to a more generalised battle in which the essential emotional well-being of the children is now, in my judgment, in peril.
The First Applicant ("F1") is the father of A and B; he is in a long term relationship (since 1991), and civil partnership (since June 2012), with the Second Applicant ("F2"); when referring to them together I refer to them (as counsel did in the hearing) as "the men". The First Respondent ("M1") is the mother of the children. She is in a long term relationship (since 1985), and civil partnership (since April 2008), with the Second Respondent ("M2"); when referring to them together I refer to them (as counsel did in the hearing) as "the women". Since 2006, both couples have lived close to one another (the men moving to the neighbourhood of the women to be on hand for them and the children).
For those wishing to trace the evolution of the case, it has been reported in the specialist law reports at two earlier stages of its fraught progression through the family courts: MA v RS [2012] Fam Law 13 (July 2011 judgment); Re P and L (Contact) [2011] EWHC 3431 (Fam), [2012] 1 FLR 1068 (December 2011 judgment). One further judgment, important in the evolution of the case, has been delivered in the meantime (unreported: 13 July 2012)
There is no way forward from here which does not involve the continuation of harm to the children, the risk of future harm, and/or inevitable loss to the children. The issue for me has tragically become one of balancing the risks of harm.
The immense challenge which confronts me now in trying to resolve this dispute has to be considered by reference to the fact that:
i) The current litigation over contact has been ongoing, without a single break, for more than five years (the application was first issued on 19 June 2008). As Munby J observed in Re D (above) (at §45): " It is almost impossible to see how such a timescale [which was of a similar length in that case] can ever be compatible with the requirements of the European Convention, however much it may be said that the proceedings have become protracted by reason of the behaviour of one or other or both parents."
ii) Altogether, in that period, at least 27 Court Orders have been made;
iii) I am the fourteenth different Judge to have had conduct of the case. The lack of judicial continuity has contributed to the difficulties in managing or resolving the situation. This situation is particularly regrettable given that the men applied on 2 March 2009 for an order for judicial continuity. Again, borrowing from Munby J in Re D (above) (§48) " judicial continuity in private law cases of any complexity is essential, because, if delay is to be minimised, … 'strict judicial control' is required." This message has of course been re-inforced by the Family Justice Review [2012] and a key component of the Modernisation of Family Justice Programme (Ryder J) [2012];
iv) The court has, over the period since 2008, engaged two of the most eminent Consultant Child and Adolescent Psychiatrists known to the family courts (Dr. Hamish Cameron and Dr. Mark Berelowitz) to advise;
v) For reasons which will become apparent, the court has also received (very recently, and for the purposes of this hearing) evidence from a senior Adult Psychiatrist (Dr. R);
vi) Two experienced officers from CAFCASS have advised the court as rule 16.4 Guardians for the children; the current Guardian was appointed to the case three years ago and remains in that role;
vii) The services of the Centre for Separated Families has been engaged over a period of months in 2011 (February to July); their efforts failed to break the deadlock;
viii) There have been more than 35 reports prepared by professionals;
ix) Independent social work agents have been engaged to facilitate handover of contact, without success;
x) Family therapy has been attempted, without positive result;
xi) Mediation has been attempted, but did not 'get off the ground';
xii) A CAMHS therapist has been engaged to work with A; this came to an end when F1 and F2 apparently made formal complaints against the service and withdrew consent for A and B to receive a service from CAMHS (July 2012); as a consequence of this A was said to have been deprived of the valued " therapeutic space" in which she could talk openly about her feelings;
xiii) Penal notices have been attached to the orders, but these have been ignored;
xiv) Over £500,000 has been spent by the parties in this period; of this, over £100,000 has been expended by the public purse on behalf of the children themselves;
xv) The parties have given oral evidence on but two occasions; other witnesses have been brought into the dispute on both sides;
xvi) Over the years, more than 12 counsel have been instructed; experienced Leading Counsel have been engaged on behalf of the lay parties for this (as for earlier) hearings;
xvii) The documents filed in the case now fill six lever arch files. There are many overly-long, intensely wordy, statements containing partisan and repetitious accounts of the troubled history of the case, each party setting out the history to their own version of what they believe now to be the 'truth'.
The magnitude of the problems adumbrated in §7 above are compounded by the fact that, as Hedley J found a whole year ago, contact had " broken down completely", and now the situation is that:
i) A last stayed with F1 and F2 in March 2008;
ii) A last saw F1 and F2 on 16 March 2011 at the home of M1 and M2, and last before that in March 2010, i.e. only once in the last three years;
iii) B last saw F1 and F2 in March 2012, more than one year ago;
and
iv) Both children are said to be wholly against the resumption of contact in any form.
That situation needs to be understood in the context (perhaps giving some understanding to the root cause of the current problems) that (as Hedley J found when he last gave a substantive judgment in the case in July 2012) the four principal adults (identified in §4 above):
" loathe the sight of each other, and are utterly indifferent to the suffering that they inflict on each other".
He went on to say:
" The result of all this is that so deep is the loathing and so acute the walls of protection that they have built around themselves, that they have created the impression of total indifference to the effects that this protracted and far from unfinished dispute has, is and will continue to have on these two children …."
In the same judgment, Hedley J further commented that:
" the whole thing has become next to impossible for any child, let alone two damaged children, to handle".
It was then, as Hedley J rightly said an " intractable contact case". Since that time, hard though it is to believe, the situation for this family has been " getting steadily worse" (Dr. Berelowitz).
There is no clear satisfactory course of action now. Dr. Berelowitz opines that " we are probably in the unfortunate situation in which there are almost no options left".
That said, at this hearing each party advances options designed to achieve their objective; multiple cross-applications now need to be determined. The men apply for:
i)...
To continue reading
Request your trial
-
Re A and B (Contact) (No. 3)
...on 20 March 2014, and published in a redacted form (removing identifying features of the family) on 24 October 2014 together with [2013] EWHC 2305 (Fam) [2013] EWHC 4150 (Fam) 4 The judgment is being distributed on the strict understanding that in any report no person other than the advoc......
-
F1 and F2 v M1 and Others
...on 20 December 2013, and published in a redacted form (removing identifying features of the family) on 24 October 2014 together with [2013] EWHC 2305 (Fam) The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors ......