G (Children: Intractable Dispute)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Jackson,Lord Justice Coulson,Lord Justice Longmore |
| Judgment Date | 03 April 2019 |
| Neutral Citation | [2019] EWCA Civ 548 |
| Docket Number | Case No: B4/2019/0241 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 April 2019 |
[2019] EWCA Civ 548
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT NORTHAMPTON
HHJ Handley
NN139P00318
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Longmore
Lord Justice Peter Jackson
and
Lord Justice Coulson
Case No: B4/2019/0241
Siân Smith (instructed by Advocate pro bono) for the Appellant Father
Cleo Perry and Andrew Powell (instructed by Fullers Family Law) for the Respondent Mother
Hannah Gomersall (instructed by National Youth Advocacy Service) for the Respondent Children by their Guardian
Hearing date: 21 March 2019
Approved Judgment
Introduction
This appeal concerns two children, Gina (11) and Frances (8), as I will call them. They live with their mother, who separated from their father six years ago. Since then, they have seen very little of him, Gina's last contact being in 2014 and Frances's in 2016. For this state of affairs the father blames the mother and the court system. HHJ Handley, sitting in the Family Court at Northampton on 2 July 2018, did not agree. At the end of proceedings that had been running continuously since the parents' separation, he refused the father's application for orders that the children should live with him or have contact with him and prevented him from bringing further applications without permission for three years. He found that the father himself had become the leading author of what is on any view a great misfortune for these children and their parents. The father now appeals.
The background
The parents, now in their 40s, lived together for some years but separated in May 2013, when the mother left the family home with the children and went to her parents' home. Until then the children, aged just 5 and 2, had enjoyed a good relationship with their father. The mother had been prescribed anti-depressants from the time of Gina's birth, and she remains on a high dose.
In the month of the separation the mother applied for injunctions and for a residence order. She made allegations of domestic abuse against the father, consisting of sexually inappropriate conduct, controlling behaviour, verbal abuse, shouting and swearing at her in front of the children, throwing food at her, kicking the dog and shouting and swearing at the oldest child. The father made partial admissions but said other allegations were exaggerated. He nonetheless did not oppose a non-molestation order and agreed to move out of the home.
Since that time there has been uninterrupted litigation about the children and other matters, so much so that the papers before the Judge filled thirteen files. For the purpose of this appeal it is only necessary to chart the main features of the sad history. I shall do so in three stages: May 2013 to July 2015; July 2015 to April 2017; April 2017 to date.
(1) May 2013 to July 2015
By the end of May 2013, the father had seen each child once, but the mother was only willing to agree to further contact through the court proceedings. A section 7 report was prepared by the local authority. In November 2013, the court ordered weekly indirect contact for three months with weekly Skype contact to follow, and it set up a fact-finding hearing. Between January and May 2014, work was undertaken with Gina by the school nurse in which Gina was expressing her wish to see her father and saying that her mother was stopping it. Face-to-face contact then took place in March and April 2014 in a local park with the mother nearby, but by June 2014, Gina was saying that she no longer wished to see her father. She has not done so since, except on occasions when he has attended her school against her wishes.
Meantime, in February 2014, the father himself applied for an order that the children live with him. Marking the exceptional difficulty of the situation, the children were made parties in March 2014.
In August 2014, a fact-finding hearing took place before HHJ Waine. He heard from both parents and formed a favourable view of the mother and an adverse view of the father. He also relied on two section 7 reports which had by then been undertaken and found that they contained relevant matters. He made adverse findings about the father and rejected his claim that the reporter had been in collusion with the mother. He made an order for supervised contact and directed an assessment of Gina, to be conducted by Dr Jo Stevenson, a clinical psychologist. Her report, produced in November 2014, recommended further assessment of the family.
The father then pursued two complaints against the author of the section 7 reports, which were upheld by the local authority after an independent review which found amongst other things that the reporter was biased, knowingly included untrue information, and accepted the truth of the mother's allegations before the fact-finding process had taken place. An injustice had been caused to the father for which financial compensation should be considered.
Supervised contact with Frances took place twice and with Gina once at the end of 2014 but failed on other occasions before funding ran out.
The father's appeal was heard by this court, but not until 29 July 2015. The appeal was allowed: P-G (Children) [2015] EWCA Civ 1025. Giving the main judgment, Ryder LJ said that the judge's reliance on the discredited section 7 reports created “a strong prima facie perception of unfairness”. The findings were set aside and the court noted that even if the allegations had been upheld, they might well not have operated as a bar to contact. The matter was remitted to a different judge with the observation that a separate fact-finding process was unlikely to be necessary.
So the success of the father's appeal led to the setting aside of the findings of fact and the discouragement of a split hearing in a case of this kind. I do not believe that this court discouraged the making of any findings of fact at all about the mother's unresolved allegations, still less was it ruling on their truth or suggesting that they could lightly be dismissed; rather it was doubting whether any findings that might be made about them could be conclusive.
(2) July 2015 to April 2017
Following the appeal, the case was allocated to HHJ Handley, who has since then provided complete judicial continuity. He immediately made a number of case management and interim contact orders. However, the father refused to attend supervised contact on the basis that it was unnatural and he did not wish to expose himself to another professional who might “stab him in the back”. This stance continued even when the Guardian told him that Frances wanted to see him. Eventually some supervised contact with her took place (see below). Meanwhile, Skype contact which had been ordered in February 2016 took place for eight weeks only, but the underlying order was not discharged until the end of the following year.
After the appeal hearing, the father applied successfully for the replacement of the Cafcass Guardian. Then in November 2015 he applied for the discharge of the replacement Guardian, and this was granted on the basis that a position statement filed on her behalf had referred to a meeting with the father that had not taken place. There was by now a complete breakdown in the relationship between the father and Cafcass. A caseworker from NYAS was appointed to be Children's Guardian.
In February 2016, a section 37 report was ordered from the local authority following continued allegations by the father that the children were at risk of emotional harm in the mother's care. However, the father himself refused to engage with the local authority due to their previous involvement. The report concluded that the mother was committed to contact and criticised the father for not recognising the emotional harm to the children caused by his ignoring their wishes and feelings.
Also in February 2016, the father appealed from the Judge's refusal to recuse himself and for NYAS to be discharged. Permission to appeal was refused by Cobb J in June 2016.
In June 2016, the father attended the children's sports day. Gina was upset, but Frances enjoyed seeing her father. He then agreed to attend supervised contact and one successful occasion took place in August. This was followed by two unsuccessful occasions in September 2016, when Frances became very distressed. She has not had contact with her father since.
At the end of 2017, a refreshed criminal records search (which the father had opposed) showed that he had been convicted of harassment of another woman in the summer of 2015 and had been made the subject of a restraining order; that in May 2016 he had been fined for a breach of that order; that in October 2016 he was conditionally discharged for another breach; and that he had appealed that conviction and his sentence was increased to a three-month community order and an indefinite restraining order.
Judge Handley conducted a ‘final’ hearing in the family proceedings on 3–6 January and 23 February 2017, with judgment given on 24 April 2017. The main applications before the court were the original cross-applications from 2013 and 2014, and the father's application for a further psychological assessment by Dr Stevenson. That application was opposed by the Guardian, who supported the mother's application for a final order on the basis that the proceedings had been protracted and the children had suffered as a result.
The Judge preferred the father's case. In a reserved judgment, he reminded himself that the children have a right to a full relationship with both parents and any restriction on that requires good welfare-based reasons and the exhaustion of all other options. He also considered that the effect of the Court of Appeal decision was that the events...
To continue reading
Request your trial
-
S.L. v M.L.
...It is not contested that the relationship between child and father has broken down. 12 Two cases were relied upon by the Applicant; G [2019] EWCA Civ 548 and M (M) v M (G) [2015] IECA 29. In making my decision, I have considered the UK case G [2019] EWCA Civ 548. Similar allegations were ......