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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> A v A & Ors  EWHC 142 (Fam) (04 February 2004)
Cite as:  1 FLR 1195,  EWHC (Fam) 142,  EWHC 142 (Fam)
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Strand, London, WC2A 2LL
B e f o r e :
| A FATHER (Mr. A)
|A MOTHER (Mrs. A)
|THEIR TWO CHILDREN (B and C)
(Represented by the National Youth Advocacy Service
(NYAS) and their Guardian Mrs. P)
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
Crown Copyright ©
Mr Justice Wall:
Introduction and overview
The facts as summarised by NYAS
1.2 When I first met B and C in October 2002, they appeared troubled children. C had stopped seeing her father in March 2002, and was stating that she no longer loved him or wished to see him. She gave me a very unconvincing list of her worries and anxieties about seeing her father. B had stopped seeing his father in March 2002, but at his own insistence he had started seeing his father again in April 2002. B felt desperately sad that C was no longer going for contact. He did not know, as a 10 year old child, how to resolve the problems in his family. B appeared an emotionally burdened child.
1.3 With respect to the parents, Mr. and Mrs. A, a virtual state of war had been going on for over 5 years. It appeared that the first response of both parents in the event of even the most minor disagreement was to rush to solicitors or to make applications to the court. The bundle of case papers I was sent at the start of this case was so large it could be measured with a ruler. I can confirm that I read the whole bundle fully; this is a recent concern of Mr. A. In my opinion, reading the bundle was a sad testimony that two intelligent people had lost all perspective and common sense in their hatred of each other and their need to battle and win over their ex-partner. I was clear they had lost the focus on their primary role, which was to raise their children to adulthood, either separately or apart, as best they could.
1.4 The children told me that handovers or meetings between the parents were difficult for them, as they would always resort to shouting matches and conflict. The parents could not communicate together or make decisions about the children without solicitors being involved.
1.5 In November 2002, I re-introduced C to having contact with her father. This went well; it was obvious that C had a strong attachment and a loving relationship with her father. Overnight stays were started and became successful. Confusingly, C became more and more distressed to leave her mother's care when I collected her, but would settle down quickly after the separation. I had no doubt that contact was positive for C.
1.6 Mrs. A was convinced that C was at sexual risk from Mr. A. In the early days of my involvement, the more I tried to re-assure Mrs. A, as an experienced social worker in child protection, the more this issue assumed credence in Mrs. A's eyes. A finding of fact hearing was held. The court gave similar assurances to Mrs. A by finding that her concerns were unwarranted. This did not stop Mrs. A. She involved a friend in questioning C about these matters. On 30 December 2002 the court considered whether the children's residence should change. The court ordered Mr. A to become the residential parent, and for the children's contact to their mother to be at my discretion. This order put me in the driving seat. I had no doubt that the best way forward for B and C was a shared care arrangement.
1.7 Slowly the children moved to spending equal time in both their parents' care. This arrangement, which has been detailed in my earlier reports, has been running successfully since April 2003. The one undisputed fact in this case now is that the shared care arrangement suits both children well. The children are happy and thriving. They are making excellent progress at school, and in their social lives. B and C both feel they can maintain a neutral stance, as they spend equal time with each parent. I believe that the parents have now leant not to involve the children in their adult disputes to the same extent as before. B and C no longer see the need for me to keep seeing them. To them, the problems have been resolved.
The points which this case illustrates
1. First and foremost, yet again, it demonstrates the difficulty and complexity of cases of this nature. The dispute between these children's parents has lasted from the date of their separation in October 1997, and was amongst the most bitter and protracted of my experience. C was 3 when her parents separated. Thus throughout her short life she had never consciously experienced a time when her parents lived together in harmony.
2. It demonstrates the distress and the damage caused to children by long-standing and continuous hostility between their parents. The pressure on B and C has been enormous. B at one point told NYAS that he could not bear it any longer. It is, of course, too early to tell if the damage caused to these two children will spill over into their adolescent and adult lives. I hope, of course, that it will not. However, there is nothing more that the court can do, and I am satisfied that the litigation must come to an end with the making of the shared residence order.
3. It demonstrates the manner in which parents can impose their own wishes and feelings onto children and thus frustrate the formation or maintenance of a proper and loving relationship between the children and the other parent. C had been persuaded by her mother that she did not love her father and did not want to see him, when the opposite was the truth. Fortunately, the work done by NYAS, in conjunction with firm court orders, has restored the relationship between C and her father, and she now lives with him for half of her time.
4. It demonstrates the value and importance of the children having their own separate representation in certain cases. The children in this case were separately represented in the proceedings by the NYAS. The work done by NYAS was invaluable, firstly in restoring contact between C and her father and then in achieving a shared care arrangement. It was a paradigm of what can be achieved by skilled and energetic social work intervention by the children's guardian. It was also; it has to be said, exceptional in the amount of time and effort Mrs. P put into the case;
5. It demonstrates what the court can and what the court cannot achieve. On the positive side, the court was able to engage NYAS, also by conducting a formal hearing and making clear and specific findings of fact, I was able to decide categorically that allegations made by Mrs. A that Mr. A had been guilty of sexually inappropriate behaviour with C were untrue. On the negative side, neither NYAS nor I was able to improve the relationship between the parents or convince them of the damage, which the unrelenting power struggle between them was causing to their children.
6 It demonstrates the highly damaging and destructive nature of false allegations of sexual misconduct and abuse, and the caution, which is required when such allegations are made for the first time in the middle of a bitterly contested family dispute. In this case, the allegation did not come spontaneously from C: it came from C's mother reporting something C had allegedly described. I was quite satisfied that nothing untoward had occurred between C and her father, but that because of the intensity of her feelings towards her former husband, Mrs. A had distorted and misinterpreted entirely innocent activities between Mr. A and C.
7. This is a case where a shared residence order is appropriate. But it also demonstrates clearly that shared residence orders are not a panacea. Shared residence and an equal division of the children's time between their parents' houses is possible in this case because the parents live close to each other, and the children can go to school from either home. The children welcome it because, in C's words, which I have already quoted, it gives his parents nothing left to fight about. But it is a pragmatic solution, which does nothing to address the underlying hostility between the parents. Whether or not is succeeds; only time will tell.
8. The case demonstrates that intractable contact and residence disputes cut across all class barriers. In this case, the father of the children is a hospital consultant: the mother is a teacher. In their different ways, and away from each other, both are individually charming and attractive people. Their hostility towards each other, however, was tangible and frequently led to quite irrational behaviour. The Children Act Sub-Committee of the Lord Chancellor's Advisory Board on Family Law commented in its consultation on contact disputes that it was frequently the case that the more intelligent the parents, the more intransigent and bitter the dispute. This case is an example of that. Contact and residence disputes are no respecters of class barriers.
9. Finally, the case demonstrates the benefits of judicial continuity. From the time the case unexpectedly into my list on 20 November 2002 to its final resolution on 16 December 2003, I heard every application in it. My familiarity with the facts and with the parties meant that applications could be made to me at short notice, and I could make decisions swiftly. When a crisis occurred shortly before Christmas 2002, I was able to arrange a hearing swiftly to deal with it. It was not necessary for colleagues to read their way into a case to which they would be coming for the first time.
The facts in detail
1. I don't want him to go all smoochy over me.
2. I keep having bad dreams about him.
3. I don't want to go on Sunday!!!
4. He always smacks me!!
5. I don't love him!!!!!!
6. I don't like him sending cards or presents to me!
7. I don't like him coming to my school.
8. I don't like his voice on the phone.
9. He never laughs!!!!
10. I don't like falling asleep at the table.
11. I don't like eating late!!!!!
12. I don't love M (Mrs. H, her godmother)
13. I don't like his big house it is creepy!!!!
14. I'm always late for school!! And horserides!
1. Equal time with my mum and dad
2. To be able to have an Australian passport and to be able to see my relatives in Australia
3. To (sometimes) be able to choose when I go to see my mum and dad.
4. To be able to go on business trips with my dad.
Suddenly C's demeanour changed. She said to me that she wanted to go straight home. C looked crestfallen and extremely distressed. I took the telephone off her and spoke to Mrs. A. W (a cousin) who was nearby leapt forward and cuddled C who was sobbing. Mrs. A demanded in an extremely aggressive way that C be returned (home) immediately by myself. I told Mrs. A that it was now too late for this as I needed to be (elsewhere) by 7.00pm. I told her that I wanted to speak to C who was most distressed, to see why she had changed her mind about the plans so abruptly and that I would telephone Mrs. A back.
C was sobbing inconsolably, even though she was being cuddled by B, her father and W, who were all most concerned about C's distress. B asked to speak to me on his own. He told me that C would be frightened about his mother being angry because she wanted to stay on. I went back to speak to C. She told me that she would like to go out for dinner and to Toys R Us but she felt that she needed to go home. C was terribly distressed. When I asked her if B was right that she was scared of her mother being angry for wanting to stay, C confirmed that this was the case. I asked her what she wanted to do. C told me that she wanted to go to Toys R Us as planned. but that she no longer wanted to go out for dinner and could she be taken straight home. I telephoned Mrs. A to tell her this was what was happening. Mrs. A made it clear that she was angry about this to me.
In my judgment, this incident speaks volumes.
1. He would like to be able to telephone his father or his mother when he is in the other's home without any comment or him having to ask.
2. He would like his father to promise that no telephone calls would ever be tape-recorded;
3. He would like both of his parents to promise not to talk to him about the other parent or the court case.
4. He felt it may be better if his parents never met. He suggested that Mrs. H may be the best person to do the handovers
5. He suggested that if there were decisions that needed to be taken about him and C perhaps both his parents could talk to Mrs. P to make the decision.
The finding of fact hearing on 16 and 17 December 2002
(1). Disclosures from C to her mother that her father had said C had "fluff" in her "minnie" (vaginal area) and that she had to rub at it to remove it.
(2) C's disclosure to her mother that when her father cleaned her bottom after C had been to the toilet, he sometimes hurt her.
(3) That B had defecated whilst squatting on the toilet rim and that he had defecated in the bathroom whilst C was taking a bath.
(4) That C had seen Mr A flick off his underpants whilst he was naked in bed.
(5) That Mr. A had used the toilet in front of C whilst she was in the bath.
(6) C's worry list about her father (set out at paragraph 28 above) and
(7) C's disclosure to her mother that her father used to pull her down on top of him; that she did not like it; that it was like people having sex and that Mr. A was naked at the time.
(a) the parties have been separated for some 5 years before the allegations was made,
(b) the immediate issue before the court at the time was Mr. A's contact with C which Mrs. A had stopped in March 2002;
(c) the parties were preparing for what they understood at the time to be a final hearing, fixed by the district judge in July 2002 for 20 November 2002;
(d) on any view, Mrs. A was highly anxious about contact;
(e) on 16 October 2002 Mrs. P had produced her first report, which, after recording a failed attempt at contact made a specific recommendation for the reintroduction of contact, which was carefully crafted to meet C's needs and assuage any anxieties she might have;
(f) that recommendation had been specifically endorsed by the district judge on 17 October;
(g) according to Mrs. P in her first report, Mrs. A had listened to a Radio 4 Woman's Hour programme about children who were allegedlyforced to continue to have contact with an abusive parent;
(h) finally, the contact arranged for 21 October 2002 had, in Mrs. P's absence on holiday, not taken place.
(1) This allegation is not on C's list of worries dated 10 October 2002, which she gave to Mrs. P;
(2) C has not repeated it to Mrs. P, although given appropriate opportunities to do so;
(3) Mrs. A's own conduct in relation to it. Although alerted to sexual abuse by the Women's Hour programme, she did not alert Mrs. P to it, even though she wrote to her the next day asking her for a copy of her CV. At that time, Mrs. A was acting in person, and there is correspondence from her to Mr. A's solicitors after 21 October dealing with other issues, including the allegation that Mr. A inappropriately wiped C's bottom. Her solicitors did not come on the record until 14 November, although Mrs. A had plainly instructed them by 7 November, which is the date they wrote to NYAS setting out the allegation against Mr. A. In my view, Mrs. A's failure to tell Mrs. P about the incident herself is surprising – particularly in the light of the fact that her solicitors' letter to NYAS says in terms that Mrs. A looked to NYAS for advice on it.
(4) Finally, on this head, it appears that Mrs. A had spoken to the NSPCC after 21 October 2002, but did not mention this incident to them.
Events after the finding of fact hearing
I returned home at 6pm to messages from Mrs. A saying that they could not get C to go. Mr. A had also left me a message asking me to telephone him to find out if I knew were the children were. I telephoned Mr. A and explained my earlier telephone conversations with C and Mrs. A. It was agreed that I would telephone Mrs. A and ask her to bring the children to meet Mr. A by 6.15pm or she would have to take them to Mr. A's home herself. Mr. A had arranged for several work colleagues to come to his home, and needed to get back to meet them. Mr. A told me that C and B that morning were looking forward to having a small party that night, and had helped plan it. Mrs. P telephoned Mrs. A and asked her to deliver the children to McDonalds by 6.15pm at the latest, and stressed the need for her to demonstrate that she could promote C going for contact with Mr A, as she had done on Saturday 21 December 2002.
I then received a flurry of telephone messages from Mrs. A and also her friend, SM, saying they could not get C to go. Mr. A telephoned me to say that Mrs. A had brought B at 6.15pm, but C refused to get out of the car. There had been an argument as Mrs. A was requesting that he take the responsibility to drag C out of the car. Mr. A told me he was distressed when SM mentioned to him Mrs. A had told her that the judge had made findings against him that he was emotionally and psychologically abusing the children. This was said in front of B and C.
B had also telephoned me and left me a rather sad message saying he could not stand any more of this. I telephoned him back at Mr. A's home. B asked me to explain why SM had talked about his father psychologically abusing him. B said about 15 times, in a very distressed way, he needed a break from all the pressure. (my emphasis) I carefully explained to B, that just like C, his mother had her own worry list, and she was concerned about C staying with Mr. A, as his mother believed C to be at risk of harm from Mr. A. I told B that the judge had carefully listened to everything his mother and father had to say, and then decided that his mother did not need to worry about the things on her worry list. I told B that the judge now wanted C to stay with Mr. A. I said that C may need time to understand that she was safe to stay with her father, and that Mummy supported C staying. B and I discussed that when C was at her father's home she was happy. He agreed with this, but he was struggling to understand why C gets so upset.
Around 7.30pm, Mrs. A telephoned me. She told me that C had talked to her mother about her "secret'. Mrs. A told me she had telephoned the local Social Services Emergency Duty Team and the NSPCC who had all advised her that C should not go for contact. Mrs. A told me her vicar was present as well. I advised her to seriously consider her position if she could not accept the findings of the court and advised her that the contact arrangements agreed at court should continue. I suggested to Mrs. A that her current stance may mean that a change of residence for the children would have to be considered.
Around 8.45pm, I was telephoned by a JJ, She told me she was a friend of Mrs. A and she had just been talking to C in her bedroom and C had made disclosures to her. I asked that she let me take a careful note of what she wanted to tell me. I firstly asked her address and telephone number. JJ told me she worked for a Welfare Rights Team doing administration and filing. She told me she was not one of the front line staff and had no experience of child sexual abuse.
JJ told me that she talked to C in her bedroom and explained to C it was serious, if she did not go to her father's tonight. J said C told her she had a secret, she had not told (me), but would tell JJ. I shall write up my notes of the conversation I had with JJ
NYAS and I decided that prior to the hearing on 30 December 2002, I should see both B and C to carry out the most up-to-date assessment of the children as possible. From my interviews today with C, it is clear that she is rather fed up with talking about an incident, which she herself does not describe as a serious event, when she was playing with her father in his bedroom, some time ago. During the play, her father lifted C on top of him. C did not like this. C says that they continued playing afterwards. She did not exhibit any undue stress on talking about this; apart from when she was asked by myself to clarify why she had said it was like sex.
It is apparent that C is still rather innocent about sexual matters, and thinks sex is like kissing and lying on top of each other, as she had seen in a James Bond movie. I am of the view that C's rather innocent statements about this event have been distorted and exaggerated out of all proportion by her mother and her friends. I believe that C's understanding about what constitutes sex has been misinterpreted. SM and JJ have not explored with C the context that this event took place. I accept that C, with prompting from her mother, now says she did not like this, but to me she put it clearly in the context of having taken place during a play session with her father, rather than being in a context where Mr. A gained sexual pleasure out of it…
I am most concerned that C talked to me today about never seeing her father again, and not until she is at least 21 years old. This is a new development. C admitted to me she had been happy seeing her father, but now says it was only because someone from the court was present. She says she does not love her father and does not want to see him. She says this repetitively, without emotion and rather as if this is a learnt mantra. I am now concerned that C's own reality has been taken away from her. She can only see what her mother wants her to see….
… C now believes that she will not see her father again until her majority. At the age of only 8, C cannot understand the full implications of that decision. I no longer believe C is stating her own views, but is now only reciting, parrot fashion, the views of her mother (my emphasis).
Events after 30 December 2002
… would have hoped that Mr. A might have been able now to put this matter on one side, and focus primarily on the needs of the children, and on developing means of working with and communicating with Mrs. A.
It seems that he is not yet able to do so. It appears that Mr. A wishes to have others accept what he feels are the fundamental issues in this case: by which he means accepting that Mrs. A has serious psychological problems…
Neither Mrs P nor myself shared Mr. A's view that such an approach of examining the fundamentals of the case, to support the view that Mrs. A was psychologically disturbed, would be either helpful or productive.
Given the stance adopted by Mr. A, and the fact that further professional intervention would appear to be contra-indicated in the short to medium term future at least, I believe that Mr and Mrs A will have to find a way of communicating and dealing with one another in matters relating to the children.
It is my opinion that given the volatile family dynamic it would not be prudent to allocate residence to either of the parents, which would be likely to leave one parent feeling disadvantaged, and which could then fuel further difficulties.
It seems that B and C have benefited from shared care, and they have both made it clear that they wish the current arrangements to continue.
Therefore I am of the opinion that Mr and Mrs A should have equal shared residence of their children for the rest of their minorities.
In June 2003 I did not feel that Mr. A could be trusted with being the parent with a residence order. I felt if he was given the power to do so, he would disrupt the children's shared contact schedule to meet his own needs rather than the children's. I predicted that it would only be a matter of weeks before conflict would arise and the parents would be back fighting again. Mr. A has not been able to see for himself that the current shared care and contact arrangements allow the children to feel safe and that they can maintain a neutral stance. I am afraid as Mr. A withdrew from the joint work with Mrs. A and has adopted a rather hostile stance to NYAS, that I trust him now even less than I did in June, to promote the children's best interests, if a residence order were made in his favour…
Given Mrs. A's current situation, I would suggest that any change in the shared care / contact arrangements at the current time would be detrimental to B and C. They are aware that their mother has cancer and will need to spend the usual amount of time with her. If not, they will have increased anxiety and stress.
The Cases on Joint residence orders
Apart from the effect on the other parent, which has already been mentioned, the main difference between a residence order and a custody order is that the new order should be flexible enough to accommodate a much wider range of situations. In some cases, the child may live with both parents even though they do not share the same household. It was never our intention to suggest that children should share their time more or less equally between their parents. Such arrangements will rarely be practicable, let alone for the children's benefit. However, the evidence from the United States is that where they are practicable they can work well and we see no reason why they should be actively discouraged. None of our respondents shared the view expressed in a recent case [Riley's case] that such an arrangement, which had been working well for some years, should never have been made. More commonly, however, the child will live with both parents but spend more time with one than the other. Examples might be where he spends term time with one and holidays with the other, or two out of three holidays from boarding school with one and the third with the other. It is a far more realistic description of the responsibilities involved in that sort of arrangement to make a residence order covering both parents rather than a residence order for one and a contact order for the other. Hence we recommend that where the child is to live with two (or more) people who do not live together, the order may specify the periods during which the child is to live in each household. The specification may be general rather than detailed and in some cases may not be necessary at all.
it is not expected that it would become a common form of order, partly because most children will still need the stability of a single home, and partly because in the cases where shared care is appropriate there is less likely to be a need for the court to make any order at all. However, a shared care order has the advantage of being more realistic in those cases where the child is to spend considerable amount of time with both parents, brings with it certain other benefits (including the right to remove the child from accommodation provided by a local authority under s.20), and removes any impression that one parent is good and responsible whereas the other parent is not.'
17] I completely appreciate why the recorder wished to make a shared residence order in this case. He wanted to recognise the equal status of each parent in relation to all three of these children. He may, although he does not say so, have been afraid that the father would not recognise this if he did not make a shared residence order in relation to all three children. But the law is that the parents already have shared parental responsibility for their children. They have equal and independent power to exercise that parental responsibility. A residence order is about where a child is to live. It is very difficult to make such an order about a child who is not only not living with one of the parents but is, for the foreseeable future, unlikely even to visit with that parent. Notwithstanding, therefore, that that parent does not wish there to be any distinction between the children, because she does not wish M to feel rejected by her, the court's order has to be designed to reflect the real position on the ground. That being the case, in my view the shared residence order in relation to M was inappropriate. For that order there should be substituted an order that M is to live with his father and to have contact with his mother in the same terms as the order laid down by the learned recorder.
Section 91(14) of the Children Act 1989 and orders to last until the children are 18
1 Decisions that could be taken independently and without any consultation or notification to the other parent.
- How the children are to spend their time during contact
- Personal care for the children
- Activities undertaken
- Religious and spiritual pursuits
- Continuance of medicine treatment prescribed by GP
2 Decisions where one parent would always need to inform the other parent of the decision, but did not need to consult or take the other parent's views into account.
3 Decisions that you would need to both inform and consult the other parent prior to making the decision.
• Schools the children are to attend, including admissions applications. With reference to which senior school C should attend this is to be decided taking into account C's own views and in consultation and with advice from her teachers.
• Contact rotas in school holidays
• Planned medical and dental treatment
• Stopping medication prescribed for the children
• Attendance at school functions so they can be planned to avoid meetings wherever possible
• Age that children should be able to watch videos. ie videos recommended for children over 12 and 18.