Re A (A Child)

For those of you who had been pondering about the applicability of Re B [2013] UKSC 33 to private law cases – Re A (A Child) [2013] EWCA Civ 1104 goes some distance towards providing an answer. It concerns exceptionally long running private law proceedings, of the “implacable hostility” variety, which the Circuit Judge acknowledged on concluding them had been characterised by systemic failure. The order was for no direct contact between the girl and her father and a s91(14) order until the child’s 16th birthday (she was 13 at the time). The father appealed and did so in person. He criticised the manner in which the entire proceedings had been conducted. He did not accept that the Circuit Judge was right to draw a line under the proceedings, now that the child was 13 years old and firmly expressing her opposition to contact and the proceedings.

The proceedings had involved all the familiar features of implacable hostility cases – repeated orders, difficulties with progressing and maintaining contact, repeated breaches, appointment of a guardian, experts (Dr Weir saying that the child’s wishes should not be determinative), s37 report (conclusion – thanks but no thanks), talk of transfer of residence…

Surprisingly, the  Judge appears to have mistakenly considered himself to have a discretion as to whether or not to attach a penal notice to the contact order. Of course the attachment of a penal notice (now warning notice) is automatic since amendments to the CA 1989 came into force in 2008. There came a point where the Judge indicated that non compliance would not result in enforcement. Unfortunately there were difficulties with the health / availability of not one but two guardians.

So far so familiar. How does Re B impact on things?

McFarlane LJ gave the lead judgment in both this case and Re G (A Child) [2013] EWCA Civ 965, which summarises the impact of Re B on public law cases where Article 8 was engaged.

As to private law, McFarlane LJ says that “It may well be that not all orders under CA 1989 relating to children will be of sufficient import to engage Art 8 but the impact of Art 8 is by no means confined to public law orders. There will be a range of private law children orders which engage Art 8 and which must now be approached on appeal in the manner established by the majority of the Supreme Court in Re B. It is not necessary for the purposes of this judgment to to establish where the outer limit of this “range” may be…an order refusing all direct contact between parent and child must plainly be on the Re B side of the boundary. [pa 43]

So contact decisions as to whether a final order for no direct contact should be made must be determined in an Art 8 compliant way. And appellate judges dealing with such appeals must be dealt with applying the Re B test – if the decision is wrong the appeal must be allowed.

The system failure, which the Court of Appeal accepted had occurred, was relevant because of the rights to procedural fairness under Art 6 ECHR. Although the Court of Appeal maintained that it was nothing new, the sharpened focus provided by Re B enabled this systemic failure to be seen in terms of CPR r52(11) (3) which makes clear that one basis for allowing an appeal because it is “unjust because of a serious procedural or other irregularity”.

Although the Court of Appeal was not in a position to consider the detail of the proceedings, taking an overview the court was satisfied that the proceedings as a whole violated the procedural requirements that are a part of the rights enshrined in Article 8, with the result that the child and her Father’s rights to family life with one another had been violated.

The Court of Appeal reiterated guidance that a judicially set strategy and consistency of judicial approach are particularly important in cases of this sort. The Court of Appeal was critical of the inconsistent approach taken by the court in respect of enforcement. The Judge should have been prepared to enforce his orders and the confusion over penal notices was not a minor technical error – but an error that indicated a misunderstanding of the nature of the task of making a directive contact order in the first place. And an approach that  was based on a recommendation to proceed at the “child’s pace” and on her terms was inappropriate.

The judgment was criticised for lacking analysis on the question of what weight to attach to the child’s stated wishes and feelings, particularly in light of clear expert evidence that those should not be used as the basis for decision making in the case. The judgment included apparently incompatible findings that were not reconciled in the course of analysis. The Judge had not properly placed the current situation in the context of the broader history.

A rehearing was ordered before a High Court Judge – with a recommendation for a multi-disciplinary expert team to be instructed on the case. How that would be funded and managed in most cases without the benefit of public funding is anyone’s guess. Even in this case it is unclear, since the Father was in person. Under the new regime only the child would be funded (unless the parents are of significant means) and the LAA is highly unlikely to agree to meet the full cost of such an assessment, which would be likely to cost many thousands of pounds.

The Court of Appeal indicated that the Mother had within her power the ability to unlock the situation and permit her daughter to have some form of normal relationship with her father.

So, a useful case for those wishing to persuade the court to try something further before giving up, and to try and persuade the court to take a grip on what is apparently an intractable case. But less clear is how it will work in practice where the parties are litigants in person.

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8 thoughts on “Re A (A Child)

  1. I think that it is very difficult to assess whether a case is truly intractable or not in the early days and I think that sometimes Judges can fall foul of unfair case management criticism later down the line. I don’t believe that this was a systemic failure, but a poorly managed case right down the line.

  2. The principal is made, without the resources to back it up. If the LSC and politicians had the foresight to invest in family therapy and identifying the root cause of problems at an early stage, then the system would not be in such a mess. If a Litigant cannot afford a lawyer, then there should be social enterprises and support mechanisms which are non profit making, to signpost to the threadbare services that are out there.

  3. Agreed it is not always easy to spot at the start of proceedings but as things start to develop it might well be worth dropping a hint to the Judge. What a LiP can do though might be slightly more hit and miss.

    Signposts to self help are growing – but have to be found – and there are now one or two ‘charitable’ McKenzie Friends.

  4. This reminds me of Re.W earlier in the year and of a number of other cases which achieve the oxygen of publicity from time to time.

    All have a common, determinative factor- impotent, incompetent district judges.

    How many unenforced penal notices were attached to orders? How long did it drag on for before it even reached the attention of a circuit judge?

    I think poor case management and systemic failure are pretty much the same thing….

  5. This has nothing to do with lack of family therapy or semantic argument over the difference between a “poorly managed case right down the line” and “systemic failure”.

    It is just another case where a child should have been, by simple, peremptory decree, removed from a basket case mother, plonked with the father and the two allowed to get on with it for better or worse. It is another confirmation that UK family law is underwritten by an unwritten policy of appeasement of resident mothers backed up by mealy-mouthed judgements to squirm round uncomfortable facts.

    If anyone still suffers from a belief that UK family law is not biased against fathers at nearly all levels (apart from proper child development experts, medical experts like Dr Weir as opposed to faux ones like the psychologist here; (no surprise that Dr Weir has given up the ghost and retired), then they only have to read this case to dispel that notion. A separated father displaying just one tenth of the unfitness or recalcitrance shown by this mother, would have been shown the door long ago.

    Yet more mealy-mouthed, judicial nonsense will now predictably follow. The child will be twenty three soon and no doubt have a mind of her own.

  6. This case sounds pretty typical, and I agree fully with Paul’s comments above.

    I suppose if you are a little inexperienced or dim-witted, you will not see implacable hostility. Or rather, if you are a good politician judge, you will just pretend not to see it. That’s the politics of family law.

    The families of the multitudes of victims of implacable hostility see it even before it really begins. So there is really no excuse.

    Let’s stop apologizing and start being honest.

  7. Some fascinating comments here. In terms of systemic failure purely from a layman’s perspective, I fail to see how poor case management can lead to anything other than a systemic failure, particularly in regard to the welfare principles. Unless I read Familoo’s article wrongly, one is not symptomatic of the other but the other way around.

    However, for the more charitable amongst us, it is everybody’s responsibility to institute change at the ballot box and with our MP’s and not to vilify Judges for doing their best to uphold the laws created by our elected lawmakers. Yes there are good and basin all walks of life but it is rare when the same judge is congratulated for acting measurably, necessarily, and fairly in other cases held in private law, openly and in public forum to balance debate.

    When relationships end very badly it isn’t obvious what the future may hold.

  8. […] Lucy Reed. Her posts range from mildly whimsical discussions of suitcases to useful features on topical case law. To my mind she is better on the law than the whimsy, but that is of course very much a question of […]

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