Posted on | September 22, 2013 | 8 Comments
For those of you who had been pondering about the applicability of Re B  UKSC 33 to private law cases – Re A (A Child)  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)  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.