Mediation is the Best Way to Solve Intractable Contact Disputes

The recent case of G (Children: Intractable Dispute) [2019] EWCA Civ 548 is another example of why intractable contact cases are better resolved through mediation rather by a judge.

Facts

This case is regarding the applicant father arranging contact with his two children Gina (11) and Frances (8) who live with the respondent mother.

Contact has been sporadic and inconsistent but court proceedings regarding this matter have been ongoing since the time of their separation in 2013.

In November 2013 the court ordered weekly indirect contact for 3 months with weekly Skype contact to follow.

Between January and May 2014 Gina expressed to the school nurse that she wished to see her father but her mother was stopping it.

In March and April 2014, face-to-face contact took place in a local park with the mother nearby. By June 2014 Gina was saying she no longer wished to see her father. She has not done so since except when he attended her school against her wishes.

In August 2014, a fact-finding hearing took place. A section 7 report was prepared by the local authority on behalf of the respondent mother. The judge at the time (HHJ Waine) relied upon this report in making his judgment, an order which took an adverse view of the father and ordered for supervised contact and directed an assessment of Gina to be conducted by clinical psychologist Dr Jo Stevenson.

Supervised contact with Frances took place twice and with Gina once at the end of 2014 but failed on other occasions.

The father filed a complaint against the author of the section 7 reports and it came to light that the reporter was biased and knowingly included factually incorrect information and that they had accepted the mother’s version of events before the fact-finding process took place. 

The father appealed, this was heard in July 2015 and due to the judge’s reliance on the section 7 report, his appeal was allowed and the findings of fact were set aside.

The case was then allocated to HHJ Handley, who still presides over this case. He immediately made a number of interim contact orders at case management hearings however the father refused to attend supervised contact on the basis that it was ‘unnatural’ and he didn’t want to expose himself to any more professionals who might “stab him in the back”. This continued even after the father was told by the Guardian that Frances wished to see him, however, he did eventually engage in some supervised contact with her. 

Skype contact which was ordered in February 2016 took place for only 8 weeks, but the order that the Skype contact was part of, wasn’t discharged until the end of the following year. 

In February 2016 a section 37 report was ordered from the local authority after the father had repeatedly alleged that the children were at risk of emotional harm in their mother’s care. However, the father refused to engage. The report concluded that the mother was committed to contact and criticised the father for his refusal to engage and for not recognising the emotional harm he was causing by ignoring their wishes and feelings

In June 2016, the father attended the children’s sports day. Gina was upset but Frances enjoyed seeing him. He then agreed to attend supervised contact. One successful occasion took place in August, followed by two unsuccessful occasions in September 2016 when Frances became very distressed. She has not had contact with her father since.

Judge Handley conducted a ‘final hearing’ in the family court, giving a judgment in April 2017. At issue was the father’s application for a further psychological assessment by Dr Stevenson. That application was opposed by the Guardian who supported the mother’s application for a final order because the children had suffered as a result of the prolonged proceedings. The judge preferred the father’s case; reminding himself that the children have the right to a full relationship with both parents and any restriction on that requires good welfare-based reasons.

The judge granted the father’s application for a further assessment by Dr Stevenson and he gave an assurance that he would participate. The assessment was completed in March 2018. 

It was difficult to evaluate the father’s mental health and psychological profile due to his high level of defensiveness and oppositional behaviour. Dr Stevenson recommended further assessment outside the proceedings. The father was considered to be preoccupied with the litigation and therefore unable to prioritise the welfare interests of the children.

Gina was evaluated to have angry and dismissive feelings towards her father whereas Frances was assessed to be curious regarding him and ambivalent towards having a relationship with him. 

The judge relied upon Dr Stevenson’s evidence, the guardian’s professional opinion and also heard the father and mother’s evidence. In considering all of this, the judge made an order for the following:

  1. The children to live with their mother
  2. The dismissal of the father’s application for the children to live with or spend time with him, an order that the father should have no direct contact with the children 
  3. An indirect contact order for the mother to send the father monthly updates about the children by email
  4.  And for the father to send cards at birthdays and Christmas. In addition to an order under s.91(14) Children Act 1989 preventing the father from making an application to the court about the children without leave from the court. The order for no contact between the father and children is unless/until he completes the therapeutic work recommended by Dr Stevenson.

The father appealed this order on 4 main grounds:

(a) Procedural issues of unfairness and delay
(b) Compartmentalisation and inconsistency
(c) Not pursuing all reasonable routes to maintaining contact
(d) A s.91(14) order was disproportionate

After considering all the relevant information, the father’s appeal was dismissed. 

Issues

The assertion by the applicant father’s lawyer was that:

  1. The proceedings were procedurally unfair and infringed the children and the father’s Article 8 rights. She alleges that there were delays and missed opportunities throughout the process. The court focused on the mother’s allegations of domestic abuse throughout and not on the father’s allegations of her negative influence on the children and attempts to establish contact. 
  2. Although the factual matrix was established by the judgment in 2017, the factual basis that Dr Stevenson conducted her assessment of the family was not clear. Dr Stevenson refers at length to the allegations against the father but did not take account of the negative findings against the mother. Father’s lawyer also alleged that the Guardian failed to adequately consider the history of the case.
  3. In relation to whether all reasonable routes to maintaining a relationship had been pursued the judge failed to address the reasons for the children’s wishes and feelings to not see their father and he didn’t balance the harm of them seeing him against the harm of them not seeing him.
  4. The issuing of the s.91(14) order was disproportionate and the duration of the order was arbitrary as the number of orders undertaken was necessary to progress the case.

Therefore the Judge had to consider the following issues:

  • Whether the Judge relied on disputed allegations.
  • Whether the history of the proceedings shows an unjustified failure by the court to deal diligently with the proceedings in a timely and effective way to such a degree that it amounts to a breach of the rights of the father and the children.
  • Whether the Judge took all reasonable measures to promote contact before abandoning hope of achieving it at this stage.
  • Whether the Judge sufficiently evaluated the advantages and disadvantages of all the options he regarded as realistic; and
  • Whether the s. 91(4) order made by the Judge was justified at all, and if so whether it was for an appropriate length of time.

Rules

The governing principles that the court applied in making its judgment:

  • The welfare principle (welfare of the child is paramount)
  • the ‘effect of delay’ presumption (delay is likely to prejudice the child’s welfare under s.1(2) Children Act 1989) 
  • the parental involvement presumption (unless the contrary is shown, the involvement of the parent in the life of the child concerned will further the child’s welfare under s.1(2A) Children Act 1989)
  • the overriding objective (to deal with cases justly, expeditiously and fairly under FPR r.1.1)
  • the parties’ rights under ECHR articles 6 (Right to a fair hearing within a reasonable time) and 8 (Right to family and private life).

Application

(1) Articles 6 and 8

Where the delay has a direct and adverse impact on a party’s position, a breach of the procedural aspects of Article 8 may be found Re A (Contact: Human Rights Violations) [2013] EWCA 1104 [2014] 1 FLR 1185 at [53].

Re D [2004] EWHC 727 (Fam) at [26]-[35] gives a thorough analysis of the Convention requirements:

1st principle – Kosmopoulou v Greece [2004] 1 FCR 427 at para [47]: “the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life, even if the relationship between the parents has broken down, and domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 of the Convention.”

2nd principle –  Hoppe v Germany [2003] 1 FLR 384 at para [54], that: “in cases concerning a person’s relationship with his or her child, there is a duty to exercise exceptional diligence in view of the risk that the passage of time may result in a de facto determination of the matter.”

3rd principle – Article 8 includes what was described in Hokkanen v Finland (1994) 19 EHRR 139, [1996] 1 FLR 289 at para [55] as: “a right for the parent to have measures taken with a view to his or her being reunited with the child and an obligation for the national authorities to take such action.”

4th principle –  Hornsby v Greece (1997) 24 EHRR 250 at para [40] and reiterated in Immobiliare Saffi v Italy (1999) 30 EHRR 756 at paras [66]: … the right to a court as guaranteed by Article 6 also protects the implementation of final, binding judicial decisions, which, in States that accept the rule of law, cannot remain inoperative to the detriment of one party. Accordingly, the execution of a judicial decision cannot be unduly delayed.”

However, Lord Justice Peter Jackson held that HHJ Handley has offered judicial continuity and has attempted to help revive the father’s relationship with the children. These attempts have been stagnated by both parents at different stages of the court proceedings. So Lord Justice Peter Jackson concluded that although the length of the proceedings was of concern, neither the absence of contact with the children, nor the duration of the proceedings was enough to amount to a breach of Article 6 or 8 for the father or the children.

 (2) Factual matrix

The court has to determine what falls within the ambit of the factual framework. They do this by drawing a distinction between an allegation and a proven fact. It is the role of the court to make a finding of fact on relevant issues or leave it out of account when making decisions. Re B (Children) [2008] UKHL 35 at [2]. The court made no finding either way about the mother’s allegations of domestic abuse, therefore, the Judge treated the events as not having happened and did not rely on them for his judgment.

The judge did not rely on findings of fact that had been set aside. And the reports by Dr Stevenson and the Guardian merely recounted the history that the parents gave but they did not base their opinions on them

(3) Reasonable options

The judge had to consider what the realistic options were in relation to the facts. Aside from the father’s suggestion that the children be put in care below are the theoretical options:

a. A complete bar on contact
b. The option taken by the Judge; an order for the children to live with the mother, order for the father to have no direct contact with the children unless he completes therapeutic work recommended by Dr Stevenson. Also ordered for the mother to send father monthly updates and for the father to have indirect contact through cards on Birthdays and Christmas.
c. An order for significant indirect contact
d. An order for direct contact
e. Transfer of the children’s home to the father
f. Adjournment for further investigations

The judge pursued all reasonable routes available to him, based on the facts of the case.

(4) S.91(4) order

“On disposing of any application for an order under this Act, the court may (whether or not it makes any other order in response to the application) order that no application for an order under this Act of any specified kind may be made with respect to the child concerned by any person named in the order without leave of the court.”

Further guidance was given on how this order should be used in practice by Re P (Section 91(14) Guidelines) (Residence and Religious Heritage) [1999] 2 FLR 573 CA at [41]:

1). “Section 91(14) should be read in conjunction with section 1(1) which makes the welfare of the child the paramount consideration. 

2). The power to restrict applications to the court is discretionary and in the exercise of its´ discretion the court must weigh in the balance all the relevant circumstances. 

3). An important consideration is that to impose a restriction is a statutory intrusion into the right of a party to bring proceedings before the court and to be heard in matters affecting his/her child. 

4). The power is therefore to be used with great care and sparingly, the exception and not the rule. 

5). It is generally to be seen as an useful weapon of last resort in cases of repeated and unreasonable applications. 

6). In suitable circumstances (and on clear evidence), a court may impose the leave restriction in cases where the welfare of the child requires it, although there is no past history of making unreasonable applications. 

7). In cases under paragraph 6 above, the court will need to be satisfied first that the facts go beyond the commonly encountered need for a time to settle to a regime ordered by the Court and the all too common situation where there is animosity between the adults in dispute or between the local authority and the family and secondly that there is a serious risk that, without the imposition of the restriction, the child or the primary carers will be subject to unacceptable strain. 

8). A court may impose the restriction on making applications in the absence of a request from any of the parties, subject, of course, to the rules of natural justice such as an opportunity for the parties to be heard on the point. 

9). A restriction may be imposed with or without limitation of time. 

10). The degree of restriction should be proportionate to the harm it is intended to avoid. Therefore the court imposing the restriction should carefully consider the extent of the restriction to be imposed and specify, where appropriate, the type of application to be restrained and the duration of the order. 

11). It would be undesirable in other than the most exceptional cases to make the order ex parte.”

The mother and children are entitled to protection from incessant litigation and the length of the order is not inconsistent with the possibility of a therapeutic approach to the restoration of contact. Since the issuing of the order, the father has attempted to make 6 applications. Since the appeal in July 2015, the father issued 56 applications, showing that the mother and children both need protection from the constant litigating. 

Conclusions

In addition to conclusions on the matters described above, the judge also concluded that:

  • They did take relevant matters into account, including the children’s wishes and feelings as per Dr Stevenson’s report and the importance of contact. 
  • The two judgments HHJ Handley gave were not inconsistent.
  •  The Judge is entitled to accept professional advice that this case is clearly distinguishable from cases such as Re D EWHC 727 (Fam) and Re A (Contact: Human Rights Violations) [2013] EWCA 1104, [2014] 1 FLR 1185.

Therefore it was unanimously decided that the appeal should be dismissed.

This result undoubtedly was very distressing for the father. It is unclear from the judgment what efforts if any the parents took to engage in mediation before or during the court proceedings. But it is fair to hope that the father could have gotten a better result through mediation. 

If you have legal consulting, mediation or recruitment requirements, please contact André Brady at Brady Harvey Legal for assistance on 01908 411220 or by email at andrebrady@bradyharvey.com.

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