A v A (Shared Residence)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Wall |
| Judgment Date | 04 February 2004 |
| Neutral Citation | [2004] EWHC 142 (Fam) |
| Court | Family Division |
| Docket Number | Case No:BE97PO5759 |
| Date | 04 February 2004 |
[2004] EWHC 142 (Fam)
The Honourable Mr Justice Wall
Case No:BE97PO5759
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. Peter Horrocks (instructed by Gordon Bancks & Co) for the Applicant
Mr. Lee Arnot (instructed by Woodfine Batchelor) for the First Respondent
Mr. Rex Howling (instructed by NYAS) for the Second Respondents
Hearing dates: 16 December 2003
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment is being handed down in private on Wednesday 4 th February 2004. It consists of 35 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
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.
Introduction and overview
This case concerns two children, whom I will call B and C. They are the children of Mr and Mrs A. B is a boy who was 11 in August 2003. C is a girl aged 9 and a half. Their parents are both professional people. Mr A is a hospital consultant now aged 55: Mrs. A is a teacher, now aged 50. They were married in April 1992 and separated in October 1997. Their divorce was made absolute in September 2001 By virtue of an order made in the county court on 27 March 1998; Mrs. A obtained a residence order in relation to both children.
Although I have not investigated the history, my understanding is that there was ltigation effectively from the date of the parties' separation in October 1997, when Mrs. A removed the children from the former matrimonial. Although ultimately compromised, the divorce was, as I understand it, initially defended. Given the subsequent hostility between Mr. and Mrs A, it is unlikely that the period leading up to their separation was entirely amicable.
Early in 2002, Mr A issued an application for a joint residence order and a defined contact order. His complaint was that Mrs A had been making unilateral decisions about the children's health and education and marginalising him from those decisions. He had objected to a proposed change of school for C, and asserted that as a consequence, Mrs A had informed him that C was frightened of him. Contact between Mr A and C stopped in March 2002.
It is not necessary for me to recite all the interlocutory orders made in the county court. For my purposes, the important order is that made on 11 July 2002, which invited the National Youth Advisory Service (NYAS) to respond on the two questions of contact between C and her father, and Mr. A's application for a variation of the order for residence made by the district judge on 27 March 1998.
A consultant psychiatrist, Dr. L was instructed to advise on the attitudes of the children to contact, C's wishes in regard to schooling, and to give an assessment of what if any therapeutic input would assist the children regarding contact. She reported on 3 July 2002. She described B as a rather vulnerable, very sensitive child, who was "devastated and distracted" by his parents' disputes. C had been very fond of her father but had now apparently turned against him. She did not want contact. Dr. L was not sure how she could be helped to see him again, but said that C needed to make her peace with her father. She reported that C wanted to move schools, and that B needed and would make use of some therapeutic input. She was not sure if C would make use of a similar therapeutic input, but that did not mean she did not need it.
On 11 July 2002 she gave evidence to the district judge. The result appears to have been a compromise of the school question, but the dispute over shared residence and contact was set down for a three-day hearing commencing on 20 November 2002 before the district judge.
NYAS' response to the invitation contained in the order of 11 July 2002 was a preliminary report from Mrs. P, an independent social worker and the NYAS' caseworker, dated 16 October 2002 and written for a directions appointment to be heard on the following day. I shall return to the detail of this report later. In summary, however, it recommended the making of a defined interim contact order between C and her father in the period leading up to the final hearing on 20 November 2002. The first period was to be at a family gathering due to take place on 21 October 2002. There were then to be further contacts observed by Mrs. P.
On 17 October 2002 the district judge joined the children to the proceedings and appointed Mrs. P their guardian. In accordance with Mrs. P's advice, he made a detailed order providing for the first period of contact on 21 October and thereafter two periods of contact to be observed by Mrs. P. The court recorded its understanding that the contact visits were directed with the parties' agreement and expressed its expectation that Mrs. A would make C available for all of them.
The contact fixed for 21 October 2002 did not take place. On 18 November 2002, Mrs. P filed her second report. It set out in considerable detail the work she had done since 16 October 2002. Her recommendations were dramatic. She proposed an interim residence order for a period of three to four weeks in Mr. A's favour to allow the children what she described as a "short respite break". Those arrangements should be reviewed before the children broke up for Christmas. The court should set down a finding of fact hearing to resolve concerns expressed by Mrs. A that C was at risk from her father. She suggested this be heard either by an experienced circuit judge or transferred to the High Court. She also expressed the view that the court might well wish to consider making an order under section 37 of the Children Act 1989 inviting the intervention of the local authority on the basis that the children were suffering significant harm. She also invited consideration of a psychiatric or psychological assessment of both parents.
The district judge acted promptly on Mrs. P's recommendation that the case be transferred to the High Court. On what was intended to be the first day or a two-day hearing, he secured the immediate whereabouts of the children for the day and transferred the case to the High Court forthwith.
Thus it was that Mr and Mrs. A, their legal advisers, Mrs. P and counsel for NYAS all arrived unexpectedly in my court during the afternoon of 20 November 2002. Mr. A and NYAS were seeking the immediate removal of the children from Mrs. A's care in accordance with the latter's recommendation. Fortunately, I was sitting as applications judge and was able to accommodate an immediate hearing, which lasted into the following day. I decided not to follow Mrs. P's primary recommendation. I directed that there should be contact between both B and C and their father as recommended by Mrs. P, and that contact should take place in the presence of C's godmother, Mrs. H. I also directed a finding of fact hearing to take place on 16 and 17 December 2002 to deal with Mrs. A's allegations that Mr. A represented a threat to C.
Contact remained problematic, but the finding of fact hearing took place. At the conclusion of it, I was a certain as I could be that Mr. A was not a risk to C, and that, in particular, there had been no sort of sexually inappropriate behaviour by Mr. A towards C, and that there was no lack of appropriate sexual boundaries between Mr. A and C as Mrs. A had alleged. I concluded that C had a loving relationship with her father, and that there was no reason why she should not both see him and stay with him.
Mrs. A assured me that she would accept my judgment and the findings of fact I had made. On this basis, although I was invited to do so by Mr. A, I declined to make any change in the residence order, but made it clear that in the light of my findings, I expected contact between Mr A and C now to be fully restored.
Most unfortunately, Mrs. A did not accept my decision. She allowed a friend to interview C. The allegations were repeated and elaborated through the friend. Mrs. A also involved another friend and her local vicar. Contact between Mr A and C was frustrated.
The result was a further hearing on 30 December 2002. Mrs. A had applied for a suspension of my order directing contact, and directions as to whether C should be seen by a member of the local police or social services child protections team. I dismissed that application and ordered that the children should live with their father.
The plan was that the questions of residence and contact should be listed for a full hearing on the last three days of the Summer term commencing on 28 July 2003. In preparation for that hearing, I had ordered on 19 December 2002 that NYAS should obtain a report on Mr and Mrs A from a psychologist, Mr. BC – that report to be available by 30 April 2003. In the event, Mr BC's report was delayed. However, sufficient progress had been made by Mrs. P and Mr. BC for them to be able to recommend that the July hearing should be postponed for six months. I therefore listed the case for further directions on 16 December 2003
On 16 December 2003, there were further reports from Mrs. P and Mr. BC. Their joint view was that there was no purpose in the case proceeding to a full...
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