Is Court the solution?

After more than 20 years specialising in family law I thought I had stopped being shocked by people's behaviour.  The facts of Re A (A Child) [2013] EWCA Civ1104 which was a father's successful application to the Court of Appeal against a decision of the High Court in Sheffield that he should not have any direct contact with his daughter (age 14) and was not allowed to make any further Court applications until October 2015 is shocking on so many levels.

A few of the shocking facts:

1.         There have been on-going Court proceedings regarding the Child for the last 12 years.

2.         Since 2006 82 Court Orders have been made regarding the child. 

3.         To date seven Judges have been involved in the case.

4.         To date 10 CAFCAS Officers, numerous social workers and several experts have produced reports and given evidence.

HHJ Goldsack whose decision was being appealed considered the above to provide  "best evidence that there has been systemic failure" in the case. Judge Goldsack considered the father to be "an unimpeachable father" who had been consistently prevented from enjoying contact with his daughter by an "implacably hostile mother" in circumstances where all professionals agree that whenever contact has taken place the child enjoys her time with her father.

So why and how given the above views, did Judge Goldsack reach his decision that there should be no direct contact?

In simple terms Judge Goldsack decided that given the child's age he had no alternative but to listen to the child's wishes.  During the 12 years of litigation the child firstly began by saying that she wanted the Court proceedings to stop.  This did not happen.  Eventually the child began to say on a consistent basis that she did not want to have contact with her father. 

The basis of the father's appeal was that Judge Goldsack should not have accepted the child's words as a  true indication of her wishes and feelings given the child's enjoyment of contact on the last occasion that contact had taken place some six months earlier.  The father also considered that the Court should not abdicate its responsibility to make Orders in the best interests of the child.  Finally he considered that where a Judge admits systemic failure there should be a full re-hearing before a new Judge rather than that same Judge determine that there should be no direct contact. 

The mother argued that Judge Goldsack's decision should be upheld on the basis that the time had come to listen to the child's wishes.

The Guardian (who represented the child) submitted that Judge Goldsack was an experienced Judge who had given a careful judgment and it was not open to the Court of Appeal to hold it was wrong. 

The catalogue of events during the 12 years of the proceedings which amongst other things included illnesses and employment changes of the numerous professionals thereby creating a lack of consistency and unacceptable delay underlines just how great a systemic failure had taken place. 

The Court of Appeal concluded that there had been a violation of both the child and father's Article 8 Rights to Respect for Family Life under the ECHR and set aside Judge Goldsack's no Direct Contact Order on the basis that it was "unjust because of a serious procedural or other irregularity" and they ordered that the father's application for Contact/Residence should be re-heard.  The Court of Appeal also took the unusual step of directing that the case be listed in the first instance before the Family Division Liaison Judge for the North East (Mr Justice Moylan) who is to decide whether he himself will deal with the re-hearing or whether he will appoint another senior Judge.

The Court of Appeal also suggested that instructing a multi-disciplinary team to engage with the family as a whole to assess adult psychotic and personality difficulties as well as being adolescent focused may be beneficial. 

The question that must be asked is whether this Court of Appeal decision will actually help either the father or the child in this case?  How will hostility and views that have become entrenched over 12 years suddenly disappear?

It is perhaps also worth noting that there is an 11 months gap between Judge Goldsack's decision in October 2012 and the Court of Appeal decision of September 2013.  Will yet another year have elapsed before the re-hearing has taken place?  Will a new multi-disciplinary team with new experts compound the failures to date?  In reality can the level of damage for this family ever be undone?

There is every possibility that the Court of Appeal decision will be a pyrrhic victory for the father - unfortunately there is an undeniable sense of inevitability about the outcome of the re-hearing. 

The legacy of this case must be to put measures in place to prevent similar outcomes in the future.  A multi-disciplinary team approach - to ensure continuity - sounds a good idea particularly if at its heart is the expectation that every child should enjoy as good a relationship as is possible with both parents.  Unfortunately those three entirely appropriate words "as is possible" offers scope for obstructive parents to manipulate a situation and the system. 

I hesitate to compare but in another context there is a similar conundrum facing all the participants in a system that can result in the terrible and horrific lives of children like Daniel Pelka and Hamzah Khan.  There is pressure on Judges to be more robust.  Judge Goldsack sought to do this from 17 October 2011 onwards when he had reserved the case to himself.  Court cases regarding children are now supposed to be dealt with within a 26 week timescale. Scaling back of resources works against this timescale being achieved and the fixing of arbitrary timescales irrespective of assessment of the case has already been questioned by Sir James Munby (President of the Family Division).  Of course children's wishes and feelings should be taken into account - Judge Goldsack tried to do this - but by then it was too late - the child's wishes and feelings had been informed by her life experiences of the last 12 years - the child had clearly had enough - she just wanted the pressure and stress to stop.    

Would mediation have helped in this case?  Mediation is not a panacea - it can be used to help break behavioural cycles particularly when carried out in conjunction with counselling and therapy.  Should earlier Judges have been more robust - should they have moved the child to live with the father?  Unbelievably this happened at one point during the case but the father subsequently agreed to return the child to the mother.  It is easy to reflect with hindsight on any situation that has gone badly wrong - we can resolve not to make the same mistakes again but the future mistakes are never quite the same - there is always another twist.  In the end, we all have to take responsibility for our own actions and the decisions that we make for ourselves and how those decisions may affect our children. 

Posted on: 18/10/2013

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.

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