Jd and Ld v Vb
| Jurisdiction | England & Wales |
| Judge | Dancey |
| Judgment Date | 04 March 2020 |
| Neutral Citation | [2020] EWFC 16 |
| Date | 04 March 2020 |
| Docket Number | Case No: BH17P00386 |
| Court | Family Court |
[2020] EWFC 16
IN THE FAMILY COURT SITTING AT BOURNEMOUTH
Courts of Justice
Deansleigh Road
Bournemouth
BH7 7DS
HIS HONOUR JUDGE Dancey
Sitting as a section 9 Judge
Case No: BH17P00386
and
and
The Applicants appeared in person
Kate Branigan QC and John Ward Prowse (instructed by Jacobs Reeves) for the 1 st Respondent
Adam Langrish (instructed by Abels) for the 2 nd Respondent
Anthony Hand (instructed by Pengillys) for the 3 rd Respondent
Hearing dates: 10, 13, 14, 20, 22, 30 January 2020
Index (with hyperlinks)
This judgment is divided into the following parts ( with paragraph numbers):
A Introduction ( 1–10)
B Summary of decision ( 11–22)
C The legal principles ( 23–75)
D The background history ( 76–149)
○ Allegations of sexual abuse and fact-finding hearing in April 2015 ( 80–96)
E The current proceedings ( 163–217)
F Final hearing January 2020 ( 218–279)
G The parties' submissions ( 280–369)
H Analysis of the witnesses and findings ( 370–416)
I The welfare checklist ( 417–460)
J Analysis of the options and conclusion ( 461–489)
K The future ( 490–493)
L Postscript ( 494–503)
Introduction
) “ In the battle between the parents both children risk being run over by the tanks”.
) This prescient observation by a psychologist, Ian Stringer, in a report in this case as long ago as August 2015 remains true today, perhaps even more so.
) After nearly 7 years of almost continuous litigation concerning an 8 year old girl, A, involving dismissed allegations of sexual abuse, transfer of residence from mother to father following allegations of parental alienation, breakdown of contact with the mother and allegations now of parental alienation by the father, with a successful appeal from an indirect contact only order made two years ago, I am dealing with a re-hearing on the question whether to vary an order for direct contact between A and her mother and 18 year old half-sister, B. A has not seen them since February 2018.
) I make no apology for the length of this judgment. If there is one thing everyone is agreed on, this litigation needs to come to an end for the sake of A and all the adults involved in it. To do that needs a robust judgment that is complete as it can be. I have decided that the history of the litigation needs to be dealt with in some detail to explain how we have got to where we are. Also the judgment may be helpful to those working with the family and, most particularly, in any life story work done with A. And it is important for the adults involved who will need to find a strategy to promote A's best interests and convert what is now a least worst outcome into something better for her.
) This acutely difficult case gives rise to a number of difficult and, at points, irreconcilable issues:
a) how far the court can and should go in taking measures to promote contact, including grappling with all available alternatives, where there is a real risk that in doing so the father's mental health may deteriorate, possibly to the point of suicide, or his marriage may break down;
b) the impact of the potential loss to A of both her primary carers – her father and stepmother — with the risk that she could end up in foster care (it being accepted she cannot currently return to the care of her mother);
c) the impact on A of her primary carers relinquishing her care and any contact with her in the event the court orders direct contact, as the father and stepmother say would have to happen to avoid “ continuing the warfare”;
d) how to weigh those short-term risks (but with potential long-term consequences) when balancing A's long-term need for relationships with her mother and sister and the impact on her of loss of those relationships;
e) how the duty of the court to act as ‘judicial reasonable parent’ sits with the overriding obligation to make an order that best meets the child's welfare needs;
f) how to deal with the tension between the binary consequence of dismissal of allegations of sexual abuse (and the forensic discipline of treating the abuse alleged as not having happened) and real-life sustained belief in those allegations;
g) whether the court should restrain not only the mother but also the child (now 18) who made the allegations (and who was not party to the proceedings when her allegations were dismissed) from continuing to make the allegations;
h) what steps (including participation directions) the court can and should take when a party refuses to engage in the proceedings on the basis that it would be detrimental to their mental health;
i) whether this is in fact a case of parental alienation.
) If there is one thing everyone is agreed on, there is no right answer for A. The best I can hope to achieve is the least worst outcome.
) Ms Branigan QC started her written submissions by saying “ There is a strong argument for saying that her parents and the Family Justice System have all failed this young child.” I am no apologist for the Family Justice System and I write this judgment having just read the recent talk given by former President of the Family Division, Sir James Munby “The Crisis in Private Law” 1. While there may be criticism in this case about delay and the court allowing 7 years of litigation, it is in my view fundamentally a case about failed parenting.
) On 5 February 2019 Cohen J allowed an appeal 2 from an order made by HHJ Meston QC on 23 February 2018. HHJ Meston had varied an order for direct contact between A and the mother and B made by consent in March 2017 and replaced it with an order for indirect contact only, coupled with a three year section 91(14) bar. In particular Cohen J considered that the possibility of what he called identity contact and the differential positions of the mother and B had not been explored. As HHJ Meston had by then moved courts, Cohen J directed that the matter be re-heard by me. As Cohen J has subsequently made clear, the re-hearing is not restricted to the question of identity contact. Both the mother and B seek more regular direct contact with A.
) Both applications are vehemently opposed by the father and stepmother. They seek non-molestation injunctions against the mother and B to restrain what they regard as ongoing harassment. There is already a non-molestation order in place against the mother until further order which she does not seek to discharge. She is also the subject of prohibited steps orders made by HHJ Meston (largely confirming earlier orders/undertakings) which she does not challenge.
) The father and stepmother also seek an order under section 91(14) of the Children Act 1989 restricting further applications without leave for a period of five years. The guardian supports such an order until A's second year at secondary school. The submissions on behalf of the mother were silent on this point, while B takes a neutral position.
Summary of decision
) Because this judgment is so long I am giving a brief summary here of my decision.
) I have concluded that, all things being equal, the mother would be able to manage direct contact with A without risking her emotional stability.
) Direct contact with her mother would bring long-term benefits to A.
) I do not consider at this stage that B would be able to manage direct contact given the current state of her beliefs and approach.
) Overriding this though is the inability of the father and the stepmother, because of the father's mental health state, to countenance the idea of direct contact, regular or infrequent (identity contact). The risks of further deterioration of the father's mental health, possible suicide, the stepmother (who is A's primary care) leaving the marriage or them both relinquishing care of A is too great.
) In the balancing exercise the risk of destabilising A's current placement with the father and stepmother outweighs the harm to A which will inevitably be caused by refusing direct contact. There are no right answers, only least wrong ones.
) So my conclusion is that the indirect contact order made by HHJ Meston in February 2018 should continue for the time being.
) I am not prepared to extend the existing prohibited steps orders and non-molestation injunctions in respect of the mother, nor do I grant a non-molestation injunction against B. Their more recent conduct does not make that necessary or proportionate and it would be contrary to public policy to restrain B from make referrals or discussing allegations with interested professionals, including the police.
) I have indicated the issues on which the mother should be notified or consulted in exercise of her parental responsibility.
) Unless the local authority intend to support the family through a child in need plan or otherwise I will make a family assistance order for 12 months, primarily to assist with life story work with A, which everyone agrees has been delayed and is essential.
) I am making a section 91(14) order for 4 years restricting any applications by any party for section 8 orders without leave of the court.
) I have also made suggestions about how a better outcome might be achieved for A in the future.
The legal principles
The approach to contact in complex cases
) Section 1(1) of ...
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