K (Children), R
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ryder,Lord Justice Vos,Mr Justice David Richards |
| Judgment Date | 02 September 2014 |
| Neutral Citation | [2014] EWCA Civ 1195 |
| Docket Number | Case No: B4/2014/1880 |
| Court | Court of Appeal (Civil Division) |
| Date | 02 September 2014 |
[2014] EWCA Civ 1195
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM the Family Court at Swindon
Her Honour Judge Marshall
SN13P00026
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ryder
Lord Justice Vos
and
Mr Justice David Richards
Case No: B4/2014/1880
and
and
and
Mr Peter Kent (instructed by Mowbray Woodwards) for the Appellant mother
The Respondent father appeared in person
Ms Tanya Zabihi (who did not appear below) (instructed by Withy King Solicitors) for the Children by their Children's Guardian
Ms Margaret Pine-Coffin (who did not appear below) (instructed by the County Solicitor) for Wiltshire County Council
Hearing date: 30 July 2014
The background:
On 3 June 2014 Her Honour Judge Marshall sitting in the Family Court at Swindon removed two young men, aged 14 rising 15 and 12, from the day to day care of their mother. The older boy, who I shall call A, was placed with foster carers under an interim care order made pursuant to section 38(1) of the Children Act 1989 [CA 1989] and the younger boy, who I shall call B, went to live with his father pursuant to a child arrangements order made in accordance with section 8 CA 1989. The young men were separated for the first time in their lives in the sense that they were separated from their day to day carers, their mother and her married partner, and also from each other. The judge suspended any contact between the boys and their mother for three weeks and gave directions relating to a pre-existing request for a section 37 CA 1989 report from the local authority. The proceedings were timetabled to return to the judge with the completed section 37 report on 27 August 2014.
No doubt because there was no agreement about how the removal and separation was to occur, a recovery order had to be made in accordance with section 34 of the Family Law Act 1986 and the removal happened late at night with the police in attendance. The circumstances were distressing to all involved, including at least one professional. B was so distressed that he evacuated his bladder and had to change his clothes. The removal was described by mother's representatives as 'violent'.
The decision taken by the judge was an exercise by her of the ultimate protective functions that are available to the family court when it is exercising its private law children jurisdiction. Those functions have rightly been the subject of anxious and rigorous scrutiny in this court but it should not be forgotten that this decision, like others that have to be taken every day in the family court, was made in the context of asserted urgency of the most immediate nature relating to the safety of the boys concerned, poor quality evidence and little or no time to reflect upon the judgment that was to be made. Although, as I shall describe, this court allowed the appeal in part and set aside the orders made, we did so without criticism of anyone. If there is any lesson to be learned by everyone involved, it is that a judge has to give him or herself time regardless of what anyone else wants that judge to do. I would suggest that the decision that was made in this case would not have been made in the way that it was had time been taken to reflect on the history, the implications for the boys, the options available and the patent need for further and better evidence.
This is one of those family cases that a family court judge instinctively knows will cause harm to the children involved whatever decision is made. With that in mind, the analysis that has to be undertaken must bring to bear an acute focus on the balance of welfare factors given the facts of the case. The children are highly enmeshed in their parents' conflict and the order that Judge Marshall came to have to re-consider was expressly made with the words in mind of Wilson J. (as he then was) in Re M (Contact: Welfare Test) [1995] 1 FLR 274:
"Whether the fundamental emotional need of every child to have an enduring relationship with both his parents (s 1(3)(b) of the CA 1989) is outweighed by the depth of harm, which, in the light inter alia of his wishes and feelings (s 1(3)(a)), this child would be at risk of suffering (s 1(3)(e)) by virtue of a contact order."
An enduring solution to the problem that exists in a case like this depends upon a comprehensive welfare analysis derived out of specialist case management which identifies the problem with clarity, a well informed judicial strategy based on good practice and good quality evidence and a measure of good fortune. The building blocks for such a solution are rarely available in the context of an urgent safety enquiry i.e. in the heat of conflict and, as will appear from the circumstances of this case, it is not a dereliction of duty to stand back and take time to consider whether the building blocks exist. In this case, they did not.
The essential issue between the parents of these two young men was the relationship between them and their father. The children lived with their mother and her partner and were supposed to have a meaningful and equivalent relationship with their father maintained by regular and staying contact. The recent legislative changes have removed the labels of residence and contact so as to help emphasise that in a case where there is no distinguishing welfare element such as the risk of harm from a parent, that relationship is meant to be of equivalent importance i.e. it derives from the equivalence of the parental responsibility which each parent holds for each of their sons. There is no priority of one parent over another and where a child lives (formerly known as residence) is simply that, albeit that there are often very good reasons for ensuring stability of care supported by a practicable routine. The oft cited security, stability and permanence of care that every child needs are features of the parental relationship that they experience from both parents (where there are two parents who are available to exercise and share their parental responsibilities) not simply a consequence of the place where they live or exclusively from the parent with whom they live. Where there are two parents who share their parental responsibilities, they must have a plan or strategy to do that when they no longer have a relationship themselves.
The underlying proceedings concern two young men, who for stylistic convenience and with apologies to them, I shall refer to as 'the boys'. Their parents married in 1997 and separated in 2004. In June 2005 their mother married her present partner. The boys lived with their mother, at first with their father and then with her new husband, until the order made on 3 June 2014.
There has been litigation about the children before the county court, now the family court, for approximately 10 years. Weekend staying contact had been taking place since the parents' separation and in 2005 an order was made for alternate weekend staying contact between the boys and their father. That appears to have occurred until June 2009. From then until April 2012 there was no staying contact. On 15 May 2012 a new consent order was made, again providing for alternate weekend contact. A pattern of contact was established which sadly broke down in January 2013. There was then a period of no contact until 24 March 2014 when contact was ordered by the Recorder after a contested hearing (the March order). That order re-instated alternate weekend staying contact and also provided for a conditional and temporary residence order in favour of the father in the event that contact did not occur in accordance with the order. The conditional residence order was to have automatic effect and if necessary was to be supported by a recovery order so that the boys lived with their father over the summer.
The order imposed on the mother and her husband included an 'activity condition' to the residence order which was made pursuant to section 11C CA 1989. The condition was that they attend the forensic expert instructed in the proceedings on behalf of the children by their guardian, a consultant psychiatrist, for counselling and guidance 'to assist with establishing and maintaining the father's contact with the boys'. There were also protections including undertakings given by the father not to denigrate either the mother or her husband and not to publish any material identifying the boys as being involved in the proceedings. One of the purposes of the order was to try and avoid further litigation, something the Recorder had decided was causing the boys harm.
The Recorder's March judgment made it clear that he had been advised and had decided that the 2012 contact agreement which led to a consent order being made on 15 May 2012 was the ultimate solution to the contact problem. It was the bedrock of his judgment and both the objective to be achieved and the underlying rationale for his orders. It was his strategy. It is important to understand that in coming to that conclusion, he fundamentally disagreed with the boys' mother who had made an application that would have led to the cessation of direct contact. Among the findings that he made, he pulled no punches, not only did he disagree with the mother's then or previous stance in withdrawing from any support for the contact, he found that the father had:
i) breached the contact agreement (by the messages that he had sent)
ii) been dictatorial and hectoring, and
iii) been abusive to the mother's husband.
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