RE A (A CHILD)

Parental contact is key to the successful and balanced growth of every child, regardless of whether the family unit is compromised through divorce or separation; and so, when the Family Justice System is left wanting, important questions must be addressed as to how and why the institution appointed to preserve the sanctity of familial cohesion, failed to provide fair and reasoned justice to a man whose accountability was an example to estranged fathers everywhere.

Having been in a relationship for over a decade prior to the birth of their daughter, the appellant and respondent had never committed to marriage, only cohabiting for a brief period, both before and after becoming parents.

Less than two years later, they separated; after which, the father applied for a contact order.

In a matter spanning twelve years, the two parties fought for their individual rights, as their daughter became a teenager.

At the age of fourteen, matters had reached a point where the daughter expressly refused any further contact with her father; and so, the court was willing to concur through the issue of a disposal order under section 91(14) of the Children Act 1989, which would render the litigants unable to request further orders of any kind with regard to the needs and interests of their child.

Basing his appeal on the systemic failure of the family courts to preserve his rights under articles 6 (Right to a fair trial) and 8 (Right to respect for private and family life) of the European Convention on Human Rights (ECHR) (and that his daughters views were polluted through the calculated manipulation of her mother) the father requested that the Family Law Division make a full and proper reevaluation of the facts of his claim for contact/residence, and restore the outcome so as to allow his rightful enjoyment of a natural and healthy relationship with his daughter, despite her protestations.

To summarise, the matter had been heard by numerous divisional judges, while two CAFCASS (Children and Family Court Advisory and Support Service) guardians retired through ill-health, an appointed child, adolescent and family psychiatrist retired, the local authority withdrew from the case, the mother ceased to attend court and the replacement NYAS (National Youth Advocacy Service) worker had never met the mother, nor provided any evidence in court.

In addition to this, the mother herself was alcohol and drug dependant, while suffering from a paranoia and depression-inducing personality disorder coupled with Crohn’s disease; and who, on one occasion had been charged with possession of a knife and subjected to a community order, prompting an investigative report under section 37 of the Children Act 1989.

Contrastingly, throughout proceedings, the father had shown impeccable conduct, while being repeatedly subjected to unfounded accusations of abuse, irresponsibility, deviance and selfishness, despite making several allowances in favour of the mother and their child when others might easily have done otherwise.

Presented to the Supreme Court, it was with great sympathy that the facts of the appeal were given yet another examination, along with the willingness of the previous trial judge to waive enforcement of a large number of orders issued to the mother, and her continued breach of them.

Under r52(11)(3) of the Civil Procedure Rules (CPR), it is stated that the Appeal Court will allow an appeal where the decision of the lower court was either wrong, or unjust because of a serious procedural or other irregularity.

It was clear that on this occasion, denial of the appellant’s rights to spend time with his daughter, and the omission of the judge to enforce the court orders, were both violations of the natural course of justice and therefore subject to investigation.

With regard to the actions of the judge, it was held that the principles outlined by Munby J in Re L-W (Enforcement and Committal: Contact),were such that in order to avoid the risk of a case losing focus, there needed to be four points of approach adopted by the courts and presiding judges.

Namely:

(1) Judicial continuity

(2) Judicial case management including effective timetabling 

(3) A judicially set strategy for the case; and 

(4) Consistency of judicial approach

It was thus evident to the Court, that from the protracted and unstable manner in which the case had been heard, none of these virtues were visible; and that as all court orders are enforceable under section 11N of the Children Act 1989, there had been a gross departure from judicial obligation by the now retired judge. 

Looking again at the ECHR violations cited, it was held that there were obvious contradictions between the expressed wishes of the child, and her positive commentary of time spent with her father over the course of litigation; many of which, were traceable to the overt hostility shown by the mother toward the appellant, and the naturally arising sense of loyalty by the daughter (although none of these were given proper analysis prior to the judgment awarded).

This concluded that both articles 6 and 8 of the ECHR were breached, both in terms of fairness, and with regards to quality time shared between the appellant and his daughter.

Whereupon, the Court upheld the appeal, before ordering the expansive court transcripts to be sent to the President of the Family Division and Chairman of the Family Justice Board for urgent review, while the court also reminded the parties that:

“[O]rders for contact are orders of the court and, as such, consideration of the rule of law is directly engaged both when the court is considering making such an order and, crucially, when considering the consequences of any subsequent breach.”