Court of Appeal laments systemic failures in family justice

Re A (a child) [2013] EWCA Civ 1104 – read judgment

Appellate judges are obliged to review systemic failings in the family justice system as a whole, not just the merits of the trial judge’s determination, particularly where the process has deprived the parties of their rights to procedural fairness under Articles 6 and 8.  Whilst this particular appeal was  not “a fitting vehicle to enable a root and branch appraisal of the procedural history of this protracted case”,  McFarlane LJ has taken the opportunity to give full voice to the “profound feeling of failure” felt by Court on the part of the Family Justice system.

The law does its best in the triangulation of estranged parents and their children . But sometimes it does nothing more than concentrate an already toxic mixture of manipulation, mistrust and deception that seeps over the fragile construct of family life that has fallen apart at the start.  As anyone involved with the family justice system would readily agree, the conduct of human relationships, particularly following the breakdown in the relationship between the parents of a child, are not readily conducive to organisation and dictat by court order; nor are they the responsibility of the courts or the judges.  Nevertheless, as the Court of Appeal points out,  ”substantive” resources have been made available to courts and judges to discharge their responsibility in matters relating to children in a manner which affords paramount consideration to the welfare of those children “and to do so in a manner, within the limits of the court’s powers, which is likely to be effective as opposed to ineffective.”  

Factual Background

This  litigation concerning a fourteen year old girl and her parents has continued, almost without interruption, for the past twelve years.  As McFarlane LJ observed, since 2006 alone there have been no fewer than eighty-two court orders. At least seven judges have been involved in the case at one stage or another and over ten CAFCASS officers have played a part, initially as report writers and, latterly, as M’s children’s guardian.

It is hardly surprising, in the light of this, that the first instance judge expressed his despair at the greatest shambles he’d seen in twenty four years in the family courts:

I do not recall any case (even Public Law cases involving several children) which has taken so long or has left me with such a feeling of failure on the part of the Family Justice System.

This was an appeal by the father against HHJ Goldsack’s order in October last year that M should reside with her mother and there should be no for direct contact between M and her father.  The judge made this order despite the “unimpeachable” character and behaviour of the father (now 60), on the basis that, in recent times, M had consistently stated her firm opposition to the continuation of the court process and any further attempts to establish direct contact to her father. At the age of thirteen years, M’s wishes should not be overridden.

That is why her views change and why it is invidious to suggest to M that they will play much part in the court’s decision making.

But nevertheless by the time the judge came to consider matters at the end of 2012, he felt a line needed to be drawn under the proceedings, and that the court must now “accept failure”.

In [a] small proportion of cases where nothing seems to work a court must be prepared to say that proceedings have become part of the problem and are likely to cause damage (or further damage) to the child concerned. This is such a case.

Legal background

The power of the courts to make any order relating to the arrangements for residence and contact is based on Section 1 of the Children Act 1989, which makes the child’s  welfare at all times the court’s paramount consideration. As the child gets older the extent to which their ‘wishes and feelings’ becomes a determinative factor increases.  Where there is an intractable contact dispute, the authorities indicate that the court should be very reluctant to allow the implacable hostility of one parent to deter it from making a contact order where the child’s welfare otherwise requires it (Re J (A Minor) (Contact) [1994] 1 FLR 729). However, the stress engendered by the hostile parent usually leads to the court refusing contact anyway, with the consequence that the losing parent, usually the father, suffers an injustice. As Balcombe J observed in Re J,

this is yet another example where the welfare of the child requires the court to inflict injustice upon a parent with whom the child is not resident.

Article 8 is relevant to the way the appellate court proceeds: in Re B [2013] UKSC 33 the Supreme Court was unanimous that the appeal must focus not just on the judge’s exercise of discretion in deciding what is in the best interests of the child, but on his compliance or otherwise with his obligations under the Convention. It is not enough only to intervene if the first instance judge has been ‘plainly wrong’ (as per G v G [1985] 1 WLR 647). Furthermore, it is not sufficient for the courts to remain supine after issuing orders. In family cases in particular, one parent may be reluctant to push for enforcement proceedings against the other parent. This does not absolve the court of its responsibility to make sure that its dictat is carried out, in the interests of fairness and the rule of law.

It was for this reason that the first instance judges hearing this case  continued to make further orders for contact which were, in the main, ignored by the mother with complete impunity, much to the father’s cost. This was simply  not good enough:

orders 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. [55]

McFarlane LJ stresses two elements in the judicial armoury that must be deployed in such circumstances. One is the need for the single judge who has charge of the case to establish a ‘set strategy for the case’ and to stick consistently to that strategy. The second is that where the court makes an express order requiring the parent with care to comply with contact arrangements, and that order is breached, then, in the interests of consistency, the judge must support the order by considering enforcement, either under the enforcement provisions in section 11J of the 1989 Child Act or by contempt proceedings. The failure of the judge in this case to attach a penal notice to the contact orders was not a minor error;  now, as a matter of law, all contact orders are to contain a warning notice as to enforcement (Section 11 N of the 1989 Act).

 Under the modern law, the judicial discretion is not whether or not to attach a penal notice, it is whether or not to make the contact order itself.

Taking a collective view of  the combined interventions of the court over this “very extended period” , McFarlane LJ concluded that the courts below had failed to afford due consideration to the Article 8 rights of M and her father to a timely and effective process, where there was no justification for refusing contact other than the “intractable and unjustified hostility of the mother.” The failure that he had identified was, in his opinion,  of such a degree as to amount to an unjustified violation of M’s and the father’s right to respect for family life under Article 8.

As to the father’s challenge to the judge’s determination of the best interests of the child, this involved the tricky question of how much weight is to be given to the expressed wishes of a teenager in a situation where the parent with care is intractably hostile to contact. It had been incumbent on the judge to take account of the relevant expert’s views on the hostility of the mother, in the light of which the child’s views  should not have been used as a principal basis for decision making. He had also failed to give full weight to past evidence of successful contact between M and her father.  These factors, combined with the fact that a final order barring contact had made in the absence of one of the parties, meant that “almost inevitable” that the Court of Appeal should consider that it should intervene with the aim of establishing an effective and full rehearing.

The Court unanimously allowed the appeal and set aside the order of October 2012 . Papers from the case have been sent to  the President of the Family Division and to the Chairman of the Family Justice Board, so that “lessons may be learned from a study of this prolonged and most unfortunate litigation”.
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