The Father v The Mother
| Jurisdiction | England & Wales |
| Judge | Hesford |
| Judgment Date | 01 March 2023 |
| Neutral Citation | [2023] EWFC 35 |
| Court | Family Court |
and
[2023] EWFC 35
Her Honour Judge Hesford
IN THE FAMILY COURT
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF A CHILD ““J”” (a Minor)
Samuel Davis (instructed by Mowll & Mowll Solicitors) for the Applicant
The mother was unrepresented
Yvonne Healing (instructed by Anthony Theakston of Bromleys Solicitors) for the 2 nd Respondent child
Hearing date: 27 February – 28 February 2023
FINAL JUDGMENT 3 March 2023
This judgment is being handed down [in private] on 3 March 2023. It consists of 36 pages. The Judge has given permission for the judgment (and any of the facts and matters contained in it) to be published on condition 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, current address or location [including school or work place]. In particular the anonymity of the child and the adult members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that these conditions are strictly complied with. Failure to do so will be a contempt of court. For the avoidance of doubt, the strict prohibition on publishing the names and current addresses of the parties and the child will continue to apply where that information has been obtained by using the contents of this judgment to discover information already in the public domain.
I INTRODUCTION AND POSITIONS
I am concerned with “J”, a young boy, who was born on [REDACTED] 2016. This is the father's application for, inter alia, a Child Arrangements Order, which was issued in April 2021. I have had conduct of the case as District Judge & Recorder in Manchester and thereafter following appointment as a Circuit Judge in Chester.
This judgment follows on from the written Judgment I delivered on 28 June 2022 when following a contested hearing on submissions I changed “J”'s residence to live with his father pending further assessment and this final hearing. This judgment should be read in conjunction with that judgment as it contains much of the detailed history and evidence which I will not repeat here although it remains pertinent.
The father sought a final Child Arrangements Order for “J” to live with him and for an order for Supervised Contact in accordance with the recommendations of the Guardian. The mother opposed this and sought an order for “J”'s return. The Guardian and [REDACTED] Local Authority supported the father.
I have prepared a detailed written judgment in order that the mother can clearly understand the reasoning for my decisions in this matter but also so that “J” when he grows up, can also understand if he ever wishes for an explanation from the court.
II THE HEARING
The father was represented by Mr Davis of counsel, the mother acted in person and the child was represented by Ms Healing of counsel.
The matter proceeded as a remote hearing over 2 days via Teams although the mother declined to appear visually and chose to be telephoned in. She confirmed that this was her preference – she was alone at home with her younger child and she personally did not consider it appropriate for the cameras to be on in her home whilst that child was subject to a child protection plan. Mother stated that she had absolutely no other support network to assist her.
It was clear that the mother had not made any attempt to prepare for the hearing. Indeed she has failed to engage properly throughout, showing scant regard for court orders and even penal notices. She had filed no final statement (indeed had filed no formal statements whatsoever, just some brief emails) and had no papers available to her and no assistance in caring for her other child. This hearing had been listed by my order of 3 October 2022 when the mother was present and listed by Teams at her request, with her camera turned off. My order of 10 January at the Pre Hearing Review specifically ordered the mother to file a witness statement by 24 January 2023 and provided guidance on how to do so. She had eventually prepared some “questions” for the experts in the form of an email, which were submitted and dealt with in writing.
The mother also had her young child present (REDACTED months old). The court was informed that the child's social worker had offered to provide support for the mother and the child so that she could concentrate on the court hearing. She failed to engage with this offer and indeed denied that it had been made.
It is also important to note that the mother has not had the benefit of legal representation throughout this matter. Despite this she has been afforded every opportunity to engage and has been supported to represent herself. I am satisfied that if she had had legal representation the outcome would have been the same although she would have understood the process and likely outcome better had she received appropriate advice about the merits of her case from a solicitor or barrister.
The circumstances of the final hearing were accordingly not ideal. Despite this, the court and advocates for the father and the child made every effort to ensure that the mother's position was properly put forward and the mother was given the opportunity to cross examine all parties. I gave opportunities for the mother to have breaks whenever needed and to prepare a statement to read as her evidence. I also arranged for the father and guardian's closing submissions to be put in writing so that the mother could clearly see the nature of their case and prepare her response. The court is satisfied that all feasible and appropriate steps were taken to make the hearing fair and notes that the mother thanked the court for its assistance in presenting her case.
The only other option available would have been to adjourn the hearing of the courts own motion. The court did not consider this to be appropriate and no application was made by any party. Any such application would have been refused. There are many reasons why, including the following:
• The hearing was listed in October – 4–5 months ago.
• The mother has a history of failing to engage with the court process including failing to comply with orders, to file evidence, to undergo DNA testing and failing to attend court hearings by way of some examples.
• Adjourning the hearing would cause significant delay and the Children Act is clear that delay is likely to prejudice the welfare of the child. These proceedings were issued in April 2021, almost 2 years ago. They need to be concluded so that “J” can have certainty.
• Any adjournment would not be purposeful – the mother would likely, as per history, be in the same unprepared and unengaged position as she has been throughout. She freely accepted that she had no excuse at all and apologised to the court.
• In addition to this, the evidence from many sources, is significant, substantial, very detailed and overwhelmingly and unanimously in support of the father's application. Delay would not affect the quality of the evidence, mother has not made the necessary changes identified as far back as June or earlier as I will set out later in this judgment.
The court summed up the mother's position from her email as being, in very simple terms, that she doesn't accept some of the evidence (it was often unclear what) and that she simply wants another chance to care for “J”. Things are different now and she should be given that chance”. She was firmly of the opinion that everyone had already made up their minds and the court confirmed that the evidence of the professionals was clear, strong and indeed that the experts supported the same outcome but that the court would listen to her case and consider the matter fully in light of all of the evidence. She wanted to ask some questions of the witnesses and the matter therefore proceeded as a fully contested hearing.
In view of all of these issues, the court went to considerable lengths to ensure that the mother's case was clearly presented, evidence challenged as she wished and that she had every opportunity to present her case. This included standing the matter down whilst the mother attempted to locate any of the court papers, ensuring she had pen and paper available to take notes and write questions, hearing more evidence in chief from witnesses than is usual so that she could hear the case which she had to challenge and allowing her to ask extra questions at the end of each cross examination. I thus attempted to guide her as to the points to address and additionally asked some relevant questions to clarify her position regarding the evidence.
III THE BACKGROUND AND THE JUNE 2022 HEARING & JUDGMENT
When I transferred the residence of “J” to his father in June 2022 I had the benefit of a Section 37 report by [REDACTED] Children's Services and a joint psychologists assessment of all the parties.
The S.37 report was a very comprehensive document and confirmed that the Local Authority considered that the mother has parentally alienated “J” from his father. It recommended that “J” should live with his father. In my judgment I set out the following paragraphs:
“It is a significant worry that the mother is continuing to report that the child has been sexually harmed by his father, despite the investigation from K Children's Services finding no evidence of this and the initial allegation reported to have been made by the mother and not directly from the child. It is a worry that the child is potentially being led to believe that he has been sexually harmed and this could have a significant impact upon his emotional wellbeing and his mental health in the future”. (page 364)
Ms Cottam opines that...
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