[2005]JRC029
royal court
(Samedi Division)
14th March 2005
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Before:
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M. C. St. J. Birt, Esq., Deputy Bailiff and Jurats
Bullen and Le Cornu.
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Between
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G
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Petitioner
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And
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A
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Respondent
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Application for access to children –
implacable hostility.
Advocate V. Stone for the Petitioner
Advocate S. E. Fitz for the Respondent
judgment
deupty bailiff:
1.
This is an
application for access by the respondent (the “mother”) to the two
children of the marriage. It is
alleged that there has been alienation by the father in respect of the attitude
of the children towards their mother.
The case raises some issues of general interest as to how best to
proceed in such cases. We announced our decision at the conclusion
of the hearing and now give our reasons.
The matters of general interest are summarised at paragraphs 65-69 and
75-85.
The background
2.
The mother
was born and brought up in the Philippines. The father met her there whilst on
holiday. They married in the Philippines in
November 1993 and returned to live in Jersey
at the matrimonial home which was already owned by the father. There are two sons, X, born 4th April 1996 (aged 8) and
Y, born 17th May 1997
(aged 7). The mother worked
briefly before becoming pregnant but thereafter she stayed at home to look
after the children until September 2003 when she began part-time work.
3.
There had
been difficulties in the marriage for a while but things appear to have
deteriorated more rapidly in 2003.
According to the mother, there were occasions when the father was
violent towards her. There was
certainly one occasion in 2000 when the father accepted a caution at a Parish
Hall Enquiry in respect of his behaviour towards the mother although he said in
evidence that he felt that he had no alternative but to accept the caution in
order to avoid the publicity of going to Court. The mother therefore blames the father
for the break up of the marriage. The
father, on the other hand, denies any violence and alleges that the mother
gradually became less interested in looking after the family and more
interested in spending time out with friends. He further alleges that she began an
affair with the co-respondent before she left the matrimonial home.
4.
Matters
came to a head on 18th
February 2004. There
was a heated row between the parties as a result of which a neighbour called
the police. They took the mother to
the Women’s Refuge. She
remained there until 5th April at which time she moved to live with the
co-respondent and that remains the position.
5.
The father
subsequently instituted divorce proceedings and a decree nisi was granted on 14th July 2004 on the
grounds of the mother’s adultery with the co-respondent. Furthermore on 23rd July 2004 the father
issued an Order of Justice containing a non-molestation order, an order
restraining the mother from entering the matrimonial home or the father’s
place of work and a further order restraining her from telephoning the father
other than at certain specified times for the purpose of speaking to the
children.
History of access
6.
The
children remained with the father in the matrimonial home. There have been difficulties over
access. The position has not been
helped by the fact that the mother does not drive and transport is therefore a
problem.
7.
Access
first took place by direct arrangement between the parties on 13th March 2004. The mother was originally going to pick
the children up from the matrimonial home at 10.00 a.m. and she telephoned to say that she had no
transport. The father therefore
dropped the children into town and the mother had access until
mid-afternoon. The second occasion
took place on 10th April. The
mother turned up at the matrimonial home seeking access. She took the children to St Andrews playground for a while.
8.
Thereafter
difficulties arose. As early as 11th
March the mother’s advocate had written saying that the father had
refused to pick up the telephone when the mother called to try and arrange
access. This continued to be a bone
of contention in the months that followed.
In effect the mother alleged that the father discouraged access. Either the telephone was not answered
or, if it was, the father made comments which exerted pressure on the children
not to show warmth towards the mother on the telephone. As against that the father alleged that
the mother was harassing him by telephone and on many occasions did not wish to
speak to the children but merely wished to speak to him.
9.
Thereafter
access at certain specified times was in principle agreed by correspondence
between the parties’ advocates but the father made it clear that he was
not willing to grant any access unless the mother disclosed her address. She, on the other hand, stated that she
was not willing to do so because of her fear of the father. There was therefore deadlock.
10. Eventually, on 15th July, the mother’s
advocate wrote to say that the mother would accept seeing the children at
Milli’s Child Contact Centre because that was all she had been offered
unless she gave her address. The
letter emphasised that the mother was not happy with these access proposals but
was forced to take what access was offered pending the issuing of
proceedings. However no such access
appears to have taken place. The
father’s advocates replied to the suggestion only on 28th July and the
father was then away on holiday for the first three Sundays of August. Accordingly the position remained
unresolved at the time the matter came before the Registrar for the First
Appointment on 27th
August 2004.
11. Accordingly, by that time, the mother had only
had two arranged access visits since she had left. There had been some other occasions when
she had tried to see the children but these had not been a success. In May she attended Le Quennevais
swimming pool when she knew that the children would be swimming there. According to her, the father clearly
discouraged any enthusiasm from the children and appeared to frogmarch the
children past her. According to the
father she was abusive and caused a scene.
On 24th May the mother attended at the church where she knew the father
and children would be. Again she
says that the father appeared to discourage the children from being warm
towards her whereas he says that she harassed him and the children. Finally, on 4th July the mother
attended at the matrimonial home and there was a scene as a result of which the
police were called. According to
the mother she arrived because she was desperate to see the children. She rang the doorbell for a considerable
period but there was no reply.
After some time the father’s mother (to whom we shall refer as Mrs
G) and sister (Mrs F) arrived, at which point the father opened the door with
the children. He had therefore been
in the house all the time but had refused to answer the door to the mother. The father, on the other hand, alleges
that she threatened to force the door, was verbally abusive and kicked the
door.
12. On 27th August the Greffier
Substitute ordered interim access on Sundays from 10.00 a.m. to 5.00
p.m. with the father delivering the children to Milli’s
Contact Centre from where they would be collected and then returned by the mother. There was also to be telephone access on
Monday, Thursday and Saturday between 7.30 and 8.00 p.m. The
Final hearing for custody, care and control and access was fixed for 6th/7th
December and a report from the Children’s Service was ordered.
13. On 5th September the first access
took place. In general it appears
to have gone well. However, because
of difficulties in connection with his car, which would not work, the
co-respondent used his work van to transport the mother and the children. This provoked a letter dated 7th
September from the father’s lawyers protesting at the fact that the
co-respondent had been present during part of the access and at the fact that
they had travelled in the van; in this respect there were insufficient seat
belts. The letter said that the
father would be taking the matter up directly with the co-respondent’s
employers.
14. Milli’s was closed the following week and
therefore no access took place. The
next visit was on 19th September. On that occasion the mother collected
the children from Milli’s and travelled by bus into town. She stated that the bus was very full
and she and the children had to stand at the front. She did not regard this as very
satisfactory. They went to the
cinema and for a meal and the co-respondent then drove them to Coronation Park. According to the mother the visit
generally went well and the children were happy to see her. However she decided that, in view of her
experience on the bus that morning, the co-respondent should deliver them back
to Milli’s. Because his car
was still not available, the van was again used. It was clear that the mother was worried
about this and knew that the father would disapprove. Very unwisely, she told the children not
to mention to their father how they had driven back. She says that she only asked the
children not to volunteer this information; she did not tell them to lie. However it is hardly surprising if the
children were unable to understand this fine distinction and regarded
themselves as having been asked to lie to their father about the
transport. It clearly placed them
in a difficult position.
15. In his affidavit, the father said that when he
picked the children up from Milli’s he noticed the co-respondent was
there in his van. He was therefore
concerned that the children had again been transported in the van. On asking the children how they had got
from town to Coronation Park and then Milli’s, the children had told him
that the co-respondent was waiting outside Milli’s to take the mother
home and that he had not transported them.
The father went on to say in his affidavit that, later that evening, the
children’s cousin had said to the children in front of the father that
they should tell the truth about what had happened that afternoon. He said that the children then admitted
that they had lied to him about the transport arrangements as their mother had
made them promise not to tell him what had happened. The father asked them why they had lied
to him and the children were both shaking and in tears. They said that they were scared of their
mother and X then reminded their father of a time when the mother had beaten
him with a strip of plywood.
16. In evidence he gave a somewhat different
version. He denied having asked
them about the transport. He said
that, on the contrary, the children had volunteered that they had travelled by
bus and that he had thought nothing of this despite the fact that he had seen
the co-respondent at Milli’s in his van. It was only at a family supper at Mrs G’s
house that the cousin had come to him and said that the boys were very upset
because they had been lying to him.
The boys then came and told him what had happened. They broke down and said that they had
been forced to lie; they admitted that they gone in the co-respondent’s
van. The father said that he had
told them that he could not stand liars.
The children were clearly very upset. He thought that they were very worried
that they would have to face the mother the following week. Whichever of these versions is correct,
it is clear that the father made a big issue of the fact that the children had
lied to him. We have no doubt that
the children felt caught in the crossfire between the mother, who had wrongly
asked them to do this, and the father, who was clearly furious about what had
occurred.
17. The next day, the Monday, the mother said that
she telephoned the house but was told by the father that the children did not
wish to speak to her. She tried again
the following Thursday at which time X said directly to her that he did not wish
to speak to her again and Y simply said ‘goodnight’ before the
phone was put down.
18. The next access visit was due to take place on
Sunday 26th September.
Once at Milli’s the children said that they did not wish to go
with their mother. She was
naturally upset but did not force the issue and no access took place.
19. On Sunday 3rd October the children again
went to Milli’s in order to be collected by their mother. A short while after meeting her X said
that they had ‘found the sticks you used to hit us with’. The mother replied along the lines that
they only remembered the bad times when she had had to discipline them, not the
good times. The children said that
they did not wish to go with their mother.
The staff at Milli’s heard this conversation and advised that
access should be brought to a close.
20. Subsequently the Children’s Office were
informed of what had been said, as were the police. A police investigation began. Access was suspended and Milli’s
withdrew their facilities in the light of the allegation of abuse. On 14th October Mr Taylor,
the Children’s Officer, recommended supervised access during the police
investigation. The matter came
before the Greffier Substitute on 20th October who referred it to
the Inferior Number. I held a
Directions hearing on 26th October at which time I adjourned the
main hearing on access and care and control until 9th/10th
February with a request for reports from Dr Glaun and the Children’s
Service. However I ordered that a
hearing on interim access should take place on 15th/16th
November following the production of an interim report on this topic from the
Children’s Service. On 15th
November a consent order was made for supervised access on Sunday mornings at
Milli’s pending the conclusion of the police enquiry.
21. Such access has not been successful. On the first occasion, 28th
November, the mother’s lawyers had failed to communicate the
Court’s order to Milli’s and both parties were turned away. On 5th December the mother
failed to turn up. She telephoned
through to Milli’s to inform them that she had a sore throat but this was
too late to stop the husband arriving.
In evidence the mother admitted that, if her sore throat had been the
only problem, she could have attended but she was also without transport.
22. On 12th, 19th and 26th
December 2004 and 2nd and 9th January 2005, the mother attended at
Milli’s as did the father and the children but on each occasion the
children said that they did not wish to go with their mother. Accordingly no access took place.
23. On 13th January the children
attended at Milli’s in order that Dr Glaun could see the children in the
company of the mother for the purposes of preparing her report. We shall refer to this in more detail
later but suffice it to say that, according to Dr Glaun, the children responded
positively and warmly to their mother.
24. On 16th January there was no
access. The mother did not turn up
because she had no transport. Nor
did she telephone to advise of the position because, she says, she had no
credit in her telephone. Coming so
soon after the successful visit with Dr Glaun, we have to say that this was
extremely unfortunate conduct on the part of the mother.
25. On 23rd January no access took place
because the mother did not turn up.
However there is a conflict of evidence as to why this was. The mother says that the father left a
message on his answerphone to the effect that one of the boys was ill and
therefore there could be no access the following Sunday. That was why she did not arrive. He, on the other hand says that there
was no such message, that he and the children turned up expecting there to be
an attempt at access but the mother did not arrive.
26. At about this time I was informed that there
had been problems in connection with the interim access which the Court had
ordered and I therefore convened a hearing for 26th January. The Court was informed that the police
investigation had been completed and that no criminal proceedings would be
brought. The Court took the
opportunity of emphasising to the father his duty to encourage access and to
the mother, her duty to ensure that she did not let the children down.
27. On 30th January the children came to
Milli’s and on this occasion they entered the centre and stayed with
their mother for about 10 minutes before requesting to leave. On 7th February they again
saw her inside Milli’s and stayed for about 30 minutes before asking to
leave. There were two other
occasions upon which the children saw their mother. This was in the presence of Mr Taylor,
the Children’s Officer and was arranged for him for the purposes of his
report. On 1st February
the children saw their mother for about 10 minutes but said that they did not
wish to have access to her. The
visit was not a success. On 8th
February a further meeting took place but this was also unsuccessful.
28. In summary, since the separation in February
2004, the only meaningful access by the mother to the children has taken place
on two occasions in March/April, on two occasions in September and on one
occasion in January in the presence of Dr Glaun. Otherwise there has either been no access
or the children have expressed a wish not to see their mother, which wish has
been acceded to.
The evidence
29. The case lasted some 2½ days. The evidence covered a number of matters
but in view of the comparatively limited issues which we have to resolve, we
will refer only to certain aspects.
30. We begin with the independent evidence. Mrs Denise Carroll is the co-ordinator
of the Milli’s Child Contact Centre.
She gave evidence concerning the access visits arranged through
Milli’s but we do not think that we need to go beyond what we have set
out in the history of access referred to above.
31. The Court received an agreed letter dated 7th
October from the headmistress of the children’s school. She stated that, not surprisingly, the
children were very upset when their mother left the matrimonial home and, for a
while, there was a noticeable deterioration in their general care. However this has now been resolved
through the input of their grandmother Mrs G. The letter also reports a conversation
which one of the teachers had with Y on 6th October. As this has been referred to quite
extensively by each side, we think it necessary to set this out verbatim:-
Teacher
“Good morning Y, and how
are you today?”
Y
“My daddy said that a man
is coming to see me and I’ve got to say that I want to live with my
dad.”
Teacher
“Why’s that
then?”
Y
“Because my daddy
said.”
The teacher states that Y went on to say:
“We looked around for all
the sticks my mummy used to hit me with and we found a broken one.”
Having referred to this conversation the
headmistress went on to confirm that, whilst the mother had lived in the family
home, there were no concerns or evidence that she physically punished the boys
in any way. The boys were happy,
well-mannered and well cared for and gave no cause for concern.
32. Mr David Taylor is a Child Care Officer in the
employment of the Children’s Service with responsibility for this
case. Having been alerted to the
allegation, he was advised by the police and the family protection specialist
at the Children’s Service to establish if there was a need to investigate
further. As a result he met the
boys at their school on Friday 8th October. He spoke first to X who repeated that
his mother had hit them with sticks in the past and that he did not want to see
his mother. He wanted to live with
his father. Mr Taylor then saw Y. Again much has been made of this
conversation. Mr Taylor took notes
at the time as follows:-
DAT
“My name’s David
Taylor.”
Y
“I know. Daddy told me.”
DAT
“What did Daddy
say?”
Y
“What she used to smack
us with and who we’re going to live with.”
DAT
“So what do you want to
tell me?”
Y
“We found all the sticks
that Mum used & one she broke on my arm. She hid one on top of the wine
place”.
Y then went into some detail
about other things being found , lots of keys but they didn’t know where
they fitted.
DAT
“Anything else?”
Y
“She had favourites. I was her favourite.”
DAT
“Anything else?”
Y
“One question Daddy asked
– why no birthday present on May 17th & no communion
present. Auntie Caroline forgot
present but gave present after all.”
DAT
“Anything else?”
Y
“All the year, when
we’ve been out with her, she tells us to lie to Daddy. We’re scared of her.”
DAT
“Anything else?”
Y
“Daddy is the truthful
one, Mummy lies.”
DAT
Anything else?”
Y
“Every time we go, she
only gives us sweets. Daddy not
happy with this. We had a delicious
lunch but nothing healthy.”
DAT
“Delicious lunch?”
Y
“Popcorn, ice-cream &
a bun.”
DAT
“Anything else?”
Y
“No.”
DAT
“What happens on
Sunday?”
Y
“Go to Millie’s. If we come back early we may go to church
with Granny.”
DAT
“Will you see
Mummy?”
Y
“Maybe. She bought clothing & food.”
DAT
“Do you want to see
Mummy?”
Y
“Maybe, not quite
sure.”
Y went on to tell me about the
sticks. There was one green one, a
broken ruler and a brown wooden bamboo one. He then said “She used to smack us
with them very hard and threaten us with a belt so Daddy hid his
belts.” He said, “Daddy
has looked at her accounts.”
DAT
“Any more
questions?”
Y
“Have you seen her in the
co-op?”
DAT
“No.”
Y
“She’s very
selfish. If she has new children,
she can’t have us.”
33. Mr Taylor was very measured in his conclusions
but, in evidence, he stated that, in his opinion, the strong likelihood was
that these children were being influenced by the father and his family in their
attitude towards their mother. He
accepted it was just possible that it was all coming from the children
themselves but he thought it unlikely.
As he put it, the adult members of the family were influencing the
children; the children were being primed that they should reject their
mother. He could not say if this
was deliberate or whether the children were simply picking up the general
atmosphere and comments in the extended family. He gave a number of grounds which led
him to this conclusion but we would refer only to the following:-
(i)
Y’s
conversation with him on 8th October was, as he put it,
‘extraordinary’. It was
very unusual for a child to come out with such things to a stranger. What he had said suggested that he had
been told what to say. Furthermore
a number of the comments were the sort an adult would make, not a child e.g.
comparing parents by saying “Daddy is the truthful one, Mummy
lies”.
(ii) The impression that both he and his colleague
Mrs Le Couteur formed at the meeting on 1st February between the
mother and the children was that the children were repeating almost parrot
fashion why they did not want to see their mother. Y constantly looked at his brother
before answering.
(iii) His department was involved with children who
had been abused by their parents.
Even in such cases it was unusual to find children who did not wish to
see their abuser in a supervised context.
(iv) The father said to Mr Taylor that he (the
father) would not be acting in the interests of his children if he were to
insist on their seeing their mother.
It should be their choice.
(v) He did not find convincing the reasons which
the father gave as to why the children did not wish to see their mother. Those reasons were:-
(a) They were scared of her – she had hurt
them in the past.
(b) They were scared of her taking them away.
(c) She lied about transport – that is she
had got her boyfriend to transport her and the boys and told the boys not to
tell their father.
(vi) As to (a), Mr Taylor made the point already
referred to, namely that even abused children usually wished to see their
parent in a supervised context. As
to (b) it was the duty of the father to reassure them that the mother was not
going to take them away. As to (c)
the concern regarding lies about transport seemed to him to be more of an adult
issue which would quickly be forgotten by children.
(vii) There was the coincidence that a very similar
problem had arisen in connection with the children of Mr and Mrs F. Mrs F was the sister of the father and
there was close contact. The
Children’s Office had been asked to prepare a report in connection with
that case. The similarities were:-
(a) Both sets of children were alleging that they
had been hit by the ‘access’ parent with sticks (or a ruler in the
case of Mr F).
(b) Both of sets of children produced remarkably
adult accounts of these alleged events.
(c) Both sets of children were unusually adamant
that they did not wish to see the parents seeking access.
(viii) It was clear from his meeting with the father
and his extended family (Mrs G and Mrs F) that they all held very negative
feelings towards the mother.
34. His professional opinion was that access to the
mother would be in the best interests of these children. Although he suggested supervised access
in his report, he said in evidence that he had in mind a form of
‘facilitation’ to begin with, given the difficulties which there
had been, with a move shortly thereafter to unsupervised access. The important thing was that there
should be active encouragement of access by the father and his family. At our request he interviewed the
co-respondent and confirmed that there was no reason why he should not come
into contact with the children on access visits.
35. Dr Glaun is a clinical psychologist who has
specialised in the diagnosis and treatment of childhood psychological disorder
for the past 30 years. She is
currently employed as a Consultant Clinical Child Psychologist to the Child
& Adolescent Mental Health Service (“CAMHS”) of the States of
Jersey. Before this she held a
similar position in Melbourne,
Australia for
20 years. She also held the
position of Consultant Clinical Psychologist to the Melbourne Children’s
Court for many years. She prepared
a detailed report for the Court in connection with this case. This involved two interviews with each
parent, a play and observation session of the children in the company of each
parent, a meeting with the Child Care Officer and perusal of the various
documentation including school reports, reports from Milli’s etc. She also gave evidence before us.
36. We would wish to pay tribute to her
report. It is a model of its kind
spelling out clearly the material upon which she relied, her conclusions and
the reasons for those conclusions.
Of critical importance was the play and observation session which she
observed with the mother at Milli’s on 13th January. It is to be recalled that this took
place at a time when there had been no access since September and the children
had been continually refusing to get out of the father’s car on arrival
at Milli’s for access purposes.
However Dr Glaun seems to have had little difficulty in overcoming any
resistance. Part of her report
reads:-
“I told the children that
their mother was waiting for them upstairs and that I was taking them to her in
the playroom. Y immediately readied
himself to come, but X at first looked towards his father, and then said that
he did not want to see his mother.
He was very quickly and easily persuaded by me to come and both boys
hurried upstairs to the playroom.
Once the playroom door was opened, Y spontaneously rushed into the arms
of his mother.”
37. It is clear from the report and Dr
Glaun’s evidence that the play session was a considerable success. We would quote simply from Dr
Glaun’s summary of the session on page 6 of her report:-
“The conclusions from
this observation/play session are that the children relate warmly to their
mother, show and receive affection from her, share their experiences with her,
seek her approval and attention, and generally appear to feel safe and
comfortable in her company. Their
mother appeared to relate normally and naturally to them, although she was
emotionally overwhelmed at the start, which is to be expected, given the very
little contact she has had with them in recent months. The children’s reaction to seeing
their mother and spending time with her was spontaneous and I formed the
impression that there was genuine joy in being reunited with their mother. Although X held back momentarily
initially, once he embraced his mother, he could not disguise his pleasure and
sought her attention and approval throughout the session.”
38. We would mention the following particular points
from Dr Glaun’s evidence and report:-
(i)
It was put
to her that, as contended by the father, the children were frightened of their
mother because she had hit them with sticks and that was why they did not want
to have access to her. Dr Glaun was
clear that children cannot turn fear on and off. If they fear an adult they will not play
happily with that adult. In her
opinion the children would not have behaved as they did with their mother at
the play session if they had been scared of her and genuinely did not want to
see her.
(ii) She referred to what she called unusual
behaviour in connection with the whiteboard. During the play session with the mother,
the boys were writing on the whiteboard.
Y wrote “I love Mum” and called his mother over to see
it. Sometime later X looked at the
writing and added the words ‘and Dad too’. The following week, at the play session
with the father, out of the blue Y went to the whiteboard and wrote “I love Dad even more than Mum”
[his emphasis]. In Dr Glaun’s
opinion it is unusual for a child to compare love for parents in this way. Towards the end of the session X went up
to the whiteboard and wrote “Mummy
used to hit us with 5 sticks and pinch us by the ear and pull”. Again Dr Glaun considered it extremely
unusual for a child to bring this sort of thing up, completely out of context
and to a stranger. On face value it
appeared that the child had been prompted to behave in this manner.
(iii) During the play session with the father, Dr
Glaun mentioned how the children had appeared to have enjoyed their time with
their mother the previous week and asked them if they had seen her since. The father answered for them and stated that
she had not turned up to Milli’s for access over the weekend. He then began to talk inappropriately
about the impending access case, saying in front of the boys that their mother
was going to demand their appearance as witnesses in Court. Dr Glaun had to ask him to stop talking
about these matters. He did stop
but added that she was ‘misinformed’ and that the play session with
the mother had upset them. In
Dr Glaun’s opinion this indicated that the father was prone to talk
negatively about the mother in the presence of the children.
(iv) She considered it totally inappropriate for the
husband to leave it to 7 and 8 year old children to pick up the telephone when
the mother called. This placed them
in an invidious position. He ought
to pick up the phone, speak civilly to the mother and then encourage the
children to speak to her.
(v) She considered it unusual for boys of this age
to refuse to see their mother.
39. For the reasons set out in her report and in
her evidence Dr Glaun was of the clear opinion that the father was repeatedly
preventing the mother from having reasonable and regular contact with the
children. Her opinion is
conveniently encapsulated in the following paragraph on page 8 of her report:-
“[The father] has not
actively encouraged the boys to maintain contact with their mother, which is
something the custodial parent is required to do in such a situation. He admits to having not picked up the
telephone at her designated times of telephone access and, although he takes
the children to Milli’s for access, he does not actively encourage them
to go to their mother, nor does he give them a clear message that it is alright
to go. This behaviour is termed
‘passive aggression’ in psychological terms, because he goes
through the motions of complying with the Court Order, but gives out signals to
his children that, in reality, discourage compliance. The children’s behaviour suggests
that they have been put in a position in which they are made to feel that they
are disloyal to their father if they should show love for their mother. When temporarily free of these
constraints in the CAMHS playroom with their mother, they showed joy at her
presence and demonstrated love and affection for her. When in the playroom with their father,
they found it necessary to denounce their mother through writings on the
whiteboard. This can only be
interpreted as evidence of the children being influenced and placed under some
form of duress to act in this manner, which is wholly unnatural.”
40. Dr Glaun was of the opinion that access to the
mother would be in the best interests of these children and that access should
be reinstated with minimal delay and take place on a regular basis. It should take place in the privacy and
comfort of the mother’s home subject to the police investigation
exonerating her and the condition of supervised access being lifted.
41. The mother gave detailed evidence. We only need to summarise certain
aspects here. She asserted that,
during the marriage, she was the primary carer for the children. The father was employed full time. However he was a good father and, with
her full agreement, he helped the children with their homework and tucked them
up in bed. She accepted that she
was a strict disciplinarian. This
was normal in the Philippines. She accepted that upon occasions she smacked
the children on their bottoms or their hands. However she had never used sticks or
anything except her hand. She
accepted that she sometimes used something which she called ‘reverse
psychology’. She gave as an
example where one brother was fighting with the other. She might therefore threaten the latter
that he would be sent away to the Philippines if he did not behave whereupon
the reaction of the first brother would be to implore her not to do it and the
fight would be over. She also
accepted that, in order to show one of the children the dangers of a hot stove,
she had held his hand over the stove so that he could feel the heat and
therefore be aware of the danger of getting too near in future.
42. As to her reaction when the allegation of the hitting
with sticks first surfaced at Milli’s on 3rd October 2004, she said that she
did not specifically deny the allegation because that was not the Philippine
way. There one spoke in general
terms and it was not necessary to be specific in order that one be
understood. Furthermore she wanted
to remind the children of the good times.
She certainly did not intend implicitly to admit the truth of the
allegation that she had hit them with sticks merely because she had not
specifically denied it.
43. She said that there was very considerable
involvement with the G family during the marriage. There were regular family meals. Mrs G in particular was a very powerful
and influential figure.
44. She said that the father had been guilty of
violence towards her and eventually she was forced to leave the matrimonial
home in February 2004 in the circumstances described earlier. The police advised her to do so having
established that the house was in the father’s name. She knew the co-respondent by then and
he was a good friend but no sexual intercourse took place until after she had
left the matrimonial home. Apart
from the two access visits in March and April, she had had great difficulty in
securing access. She had wished to
sort it out directly with the father without the intervention of lawyers. She agreed that she made numerous
telephone calls to him, mostly on this topic but also to discuss possible
reconciliation as she was missing her children. She admitted that she had proposed a
reunion of convenience in that she wished to continue to see the
co-respondent. She and the father
would simply be together for the sake of the children. She asserted that the father was very
difficult over access (apart from the two occasions mentioned). She had not wished to disclose her
address to the father because she was fearful of his violence whereas he had
been unwilling for her to have access without giving her address so that he
might know where the children were.
She was driven to attend at Quennevais swimming pool and at the church
which the family attended in a desperate attempt to see the children. However, these occasions have not been
successful and the father had prevented any meaningful interchange with the
children. Eventually the access
through Milli’s was ordered and she felt that the first two access visits
went well. As mentioned earlier,
she admitted that, during the second access visit, she asked the children not
to tell their father that they had travelled in the van. She was worried that, if this came out,
the father would be difficult over access.
45. In this respect, her fears had been
confirmed. No successful access had
taken place since then and she was convinced that the children had been turned against
her by the father. When she
telephoned as provided for in the access order, the telephone was hardly ever
answered.
46. As to more recent attempts at access, she
accepted that she had failed to turn up on three occasions as described
earlier; but on all the other occasions she had been there even though the
children had said that they did not wish to go with her. She also admitted in cross-examination
that, on the day after the Court had, on 26th January, issued a
warning that she must not let the children down when arrangements had been
made, she failed to telephone them during the allotted half hour because she
had fallen asleep.
47. In short she said that the allegations of
hitting were unfounded, the children were not genuinely frightened of her and
that the only reason they were saying they did not wish to see her was because
of the pressure being brought to bear on them by the father and his extended
family. In this connection she also
alluded to the case of the F children.
She had seen the G family close ranks to brainwash the F children so as
to ensure that they did not wish to see their father. Indeed she had been told by the father
to say bad things about Mr F when the Children’s Service came to
interview her in connection with the F children.
48. Mr F gave evidence on behalf of the
mother. We can deal with his
evidence very briefly. In summary,
he said that Mrs G was extremely influential and powerful in the family. After he had left the matrimonial home
an allegation was made that he had hit the children with a ruler. He said that this was a false
allegation. After very few access
visits, Mrs G and Mrs F had so poisoned the children’s minds that they
said that they did not wish to see him.
He had had no access since.
He was quite clear that it was part of the plan by the G family to
ensure that he did not have access to his children.
49. Finally, on behalf of the wife we heard from the
co-respondent who confirmed that he was supportive of the mother’s wish
to have access and would be able to assist with transport, given that the
mother did not drive.
50. The father has sworn a number of affidavits and
also gave evidence. He asserted
that the mother was not a very good mother. She was lazy. Although she was the primary carer when
the children were very young, he did much more as they grew older and as the
mother started part time work. She
was often reluctant to attend school events and had to be prevailed upon to do
so. He denied having been violent
towards her and said that the marriage had broken down because of her affair
with the co-respondent.
51. He said that the mother was a very strict
disciplinarian. He was aware during
the marriage that she smacked the children quite a lot, pulled their ears, had
threatened to hit them with a belt (as a result of which he gave his only belt
to his mother) and had hit one of the children on one occasion with a green
stick. He had seen bruises on the
children and had assumed that this was from smacking. In his opinion the smacking had made the
children timid. However he did not
do anything about it as he did not wish to break up the family merely because
of over-chastisement.
52. When the mother first left he was not worried
that she would be violent towards the children during any access visits as she
would not face the pressure of having to look after the children for long
periods. He therefore agreed to
access in March/April 2004 and again pursuant to the Order of 27th
August. There was a scene after the
second access visit in September when he discovered that, as he saw it, the
children had been asked to lie by their mother and had done so. However he did not put any pressure on
the children to refuse to see their mother on the next following occasion.
53. The following week he was cleaning out the
kitchen and came across some wood on top of a cupboard. He put this on the floor for
disposal. The children pointed out
that one of these pieces of wood was the stick which the mother had hit them
with. It was a green stick some
3’ long. The children pointed
out a further two sticks amongst the wood which the mother had hit them with
and then went off to fetch two other sticks from elsewhere in the house which
they said she had also hit them with.
Although he had been aware of the suggestion that she had hit them with
a green stick, he had always understood previously that this was a very small
thin stick, not one 3’ long.
54. In his opinion there were two reasons why the
children did not wish to have access to their mother at Milli’s. They were scared of her because she had
hit them and had never apologised.
It might therefore happen again.
Secondly, she had lied to them and forced them to lie about the
transport. When it was put to him
that they were not very likely to be frightened of violence during supervised access,
he said that they were concerned that the person supervising might leave them
alone with their mother.
55. He said that, after the play session with the
mother in the presence of Dr Glaun on 13th January 2005, the children were very
subdued when they returned to the car where he and his mother were waiting for
them. When asked how it had gone, X
burst into tears. The boys got very
upset. X said that he had thought
that there was going to be permanent handover to his mother.
56. In cross-examination he was asked at some
length about the contents of the conversation which Y had had both with his
teacher on 6th October and with Mr Taylor on 8th
October. He denied that he had told
the children what to say. He said
that Y often said “Daddy
says……” when in fact Daddy had said nothing of the
sort. He queried whether the
conversation had been accurately recorded and said that, if it was, he did not
know why the children had made these remarks. He denied, for example, having been
critical in front of the children, of the mother having given them sweets and
unhealthy food. When faced with Y’s
comment to Mr Taylor on 8th October “every time we go, she only gives us sweets. Daddy not happy with this. We had a delicious lunch but nothing
healthy”, he said that this must be another example of Y using the
phrase “Daddy says” to reflect something he (Y) was saying, not
something which the father had told him.
57. His explanation for the children having said
that they did not wish to see their mother from October onwards was that she
had forced them to lie about the transport and that the sticks with which she
had hit him had been found. In his
opinion, the main reason for the children not wishing to see their mother was
that she had lied to them and forced them to lie to the father but also partly
from fear because she had hit them with sticks whilst the parties were all
living together.
58. He strongly denied having discouraged access or
having spoken negatively about the mother in the presence of the children. On the contrary, he said that he encouraged
them to see her and never ran her down in their presence. If the children themselves made
derogatory comments about their mother, he would always remonstrate with them
and he had heard his mother, Mrs G do the same.
59. He was at a loss to explain the
children’s behaviour towards their mother during the play session as
described by Dr Glaun. In his
opinion Dr Glaun must have misunderstood the position. The children were very upset when they
came away from that visit. Dr Glaun
had also misunderstood what he was trying to say about the mother calling the
children as witnesses. He conceded
that, if he ordered the children to go on access visits with their mother, they
would no doubt do so, but he thought that this would be counterproductive. When asked by Miss Fitz whether he
could think of anything good to say about the mother, he said that she was good
at nappy changing and had prepared a lot of meals in the early years. He strongly denied that he and his
family were applying a strategy in respect of the children which mirrored their
successful strategy in respect of the F children. He did not oppose unsupervised
access. He thought that there ought
to be a few weeks of supervised access first. However he believed that the children
should not be forced to see their mother against their wishes. He thought that an apology from her
might help.
60. Mrs G is the father’s mother. She is clearly devoted to her
grandchildren and plays an extremely important part in their upbringing. However she has a very low opinion of
the mother. She explained how, even
from a fairly early stage, she took the children around and did an enormous
amount for them. As she put it, the
mother did not really want to know.
Indeed she said that most people had told her that she was a fool to do
so much for the children at that time.
61. She said that she had never witnessed any
violence towards the children but on one occasion the mother had asked her how
to get rid of a bruise on one of the children. The mother told Mrs G that she (the
mother) had walloped the child with a stick. Mrs G said that she gave the mother some
arnica and told her never to do that again. Somewhat inconsistently with this
evidence Mrs G also said that she had not known about the use of sticks until
after the mother had left the matrimonial home.
62. Mrs G was present with the father to pick up
the children after the play and observation session with the mother in the
presence of Dr Glaun. Mrs G said
that the children had been very happy as they went in. She thought that they did not even know
that they were going to see their mother.
When they came out they were very quiet and soon burst into tears. One of them said that the lady (clearly
meaning Dr Glaun) had made them hug their mother. According to Mrs G he said to the father
and Mrs G “We had to; we had to”. X became so upset that he said that he
did not wish to go to school as he was worried that his mother might pick him
up at the end of school. Mrs G
promised that she would pick him up.
X had also said that he had been worried because she (meaning Dr Glaun)
might have gone out of the room and the mother would then have hit him.
63. She said that the children were scared of the
mother and did not want to see her in case they were left on their own with
her. Mrs G said that she had
reassured the children by saying that they would not be left on their own with
Mummy and they would not come to any harm. We have to say that we found that a
revealing comment. Mrs G did not
reassure the children that they would come to no harm because there was no
question of their mother wanting to harm them. On the contrary she in effect reinforced
any such concerns by saying that they would not come to harm because they would
not be alone with their mother, thereby implicitly confirming that they might
come to harm should they be left on their own with her.
64. Mrs G denied having influenced the children against
their mother. On the contrary, she
said that on a couple of occasions she had stopped them saying bad things about
their mother. She agreed that in
ideal circumstances children should see both their parents but she would not
force a child to see the other parent.
In this case the children did not wish to see their mother because she
had hit them and had never apologised.
She also denied influencing the F children not to see their father.
The Law
65. In relation to access, as with other matters
concerning children, the best interests of the child are paramount.
66. It is equally clear that it is almost always in
the best interests of a child to have access to both parents. In Re S (Contact: Promoting Relationship with Absent
Parent) (2004) 1 FLR 1279 the Court of Appeal conducted a
wide ranging review of the importance of access. In the course of her judgment
Butler-Sloss, P at page 1285, quoted with approval the following statements
made in other cases:-
“It is the general
proposition, underpinned undoubtedly by the Children Act 1989 – and
indeed the father has correctly reminded us of the importance of continuing
relationships between children and their parents – that it is in the
interests of a child to retain contact with the parent with whom the child does
not reside. The courts generally
set their face against depriving a child of such contact and urge reluctant
caretaking parents to make contact work, however difficult it may be for that
parent who very often does not understand the importance of that continuing
contact.”
Per Butler-Sloss, P in Re T (1993) 2 FLR 450 at 459.
“…… it is almost always
in the interest of the child that he or she should have contact with the other
parent. The reason for this
scarcely needs spelling out. It is,
of course, that the separation of parents involves a loss to the child, and it
is desirable that that loss should so far as possible be made good by contact
with the non-custodial parent, that is the parent in whose day-to-day care the
child is not.”
Per Sir Thomas Bingham, M R in Re O
(Contact: Imposition of Conditions) (1995) 2
FLR 124 at 128.
67. The Court of Appeal also emphasised (at 1288)
the importance of parental co-operation by quoting with approval from the
judgment of Wall, J in Re O (2004) 1 FLR 1258 at para
69:-
“Contact in my experience
works best when parents respect each other and are able to co-operate; where
the children’s loyalties are not torn, and where they can move between
their parents without tension, unhappiness or fear of offending one parent or
the other.”
As Butler-Sloss, P said in Re S:-
“Those wise observations
ought to be widely disseminated among parents before they are locked into their
entrenched positions of conflict with the other parent of their child.”
68. The Court of Appeal also emphasised that courts
should not stand idly by when a parent seeks to obstruct access. Thus at 1286 Butler-Sloss, P again
quoted with approval from a judgment of Sir Thomas Bingham, M R in Re O at
129:-
“Neither parent should be
encouraged or permitted to think that the more intransigent, the more
unreasonable, the more obdurate and the more uncooperative they are, the more
likely they are to get their own way.”
69. In Re T (Contact: Alienation; Permission to Appeal)
(2003) 1 FLR 531 the Court of Appeal emphasised that, where there is an
allegation that the parent with care and control has alienated the child from
the non-resident parent so that the child does not wish to have access to the
non-resident parent, a court considering access must make a finding on whether
there has indeed been such alienation as this will be an important factor in
deciding what order for access should be made.
Conclusions
(1) Alienation
70. As advised in Re T, we
therefore consider first the question of whether the father and his family have
alienated these children from their mother. The Court unhesitatingly concludes that
they have. We would summarise our
reasons for so finding as follows:-
(i)
Dr Glaun
was of the clear opinion that the father had alienated the children from their
mother. We have had the opportunity
of seeing and hearing Dr Glaun give evidence as well as reading her
report. We found her to be an
impressive witness and we find ourselves convinced by the reasons which she
gave for her conclusions.
(ii) Mr Taylor was of like opinion. Again we accept his evidence in this
respect.
(iii) We heard evidence from the father and Mrs G. Both were at pains to assure us that
they did not speak negatively about the mother in the presence of the children
and the father said that he encouraged access. Yet, despite, no doubt, their wish to
make a good impression on the Court in this respect when giving evidence, they
could not conceal their dislike of the mother. On the contrary it came bubbling out no
matter how hard they tried to suppress it.
To give but one example, the father was asked whether he had anything
good to say about the mother and he could only think of the fact that she
changed the children’s nappies and gave them a lot of meals in the early
years. Having seen and heard them
both give evidence, we are in no doubt that they both actively dislike the
mother and that they are simply incapable of concealing these feelings from the
children. We have no doubt that
these strongly held views on their part are a very strong influence on the
children.
(iv) The comments made by the children to their
teacher on 6th October and to Mr Taylor on 8th October
are strongly suggestive of attempts by the father to influence the children by
telling them what to say. We were
not impressed by his attempts to explain away these comments.
(v) As both Dr Glaun and Mr Taylor said in
evidence, it is highly unusual for children as young as 7 and 8 not to wish to
see their mother, however imperfect she may be. We do not accept that the true reason
for their reluctance lies with any of the two explanations put forward by the
father.
(vi) In the first place he says that they are scared
of her because she has hit them in the past. We will deal with this allegation
shortly but, even if it is true that she has hit them in the past, we do not
accept that they are scared of her to the extent that this is the reason they
do not wish to see her. In March
and April – when presumably their memory of any hitting would have been at
its strongest because she had only just left – there was no reluctance on
their part to go and see her.
Similarly, on the first two occasions in September, there is no
suggestion that they were frightened to go and see her. As Dr Glaun said, fear is not something
which can be turned on and off. It
is clear from her evidence that, during the play session with the mother in
January 2005, the children were not afraid of her at all. They derived genuine joy from her
company. This is wholly inconsistent
with any real fear on their part.
(vii) The second reason given by the father for their
reluctance was that the mother had forced them to lie to him about the
transport. We agree that this was
an extremely misguided request on her part which should not be repeated. However we agree with the views of Dr
Glaun and Mr Taylor that this sort of matter is highly unlikely to influence
children not to wish to see a parent again. What has caused the problem is that the
father became furious at what had occurred and, instead of dealing with this
privately with the mother, involved the children by clearly giving them a
severe telling off and saying that he could not stand liars. It was that reaction on his part which
blew matters out of proportion and caused the children to be fearful of being
put in a position where they might displease their father.
(viii) The father’s true attitude towards access
appears in his approach to the mother’s telephone calls. He offered no encouragement to the
children in this respect. He let
the telephone ring without picking it up and without telling the children to
pick it up. He simply left it to
them. We have no doubt that they
realised that he would prefer that they not speak to their mother; accordingly
they did not do so.
(ix) Children of this age are usually capable of
being persuaded to do things even if they are initially reluctant – see
for example the ease with which Dr Glaun persuaded the children to see their
mother at the play session. The
father did not dispute that, if he told the children to do something, they
would do it. We have no doubt that,
if he chose to, the father could ensure that these children approached access to
their mother in a positive rather than negative frame of mind.
(x) A clear illustration of the pressure which
these children are under from the father’s family is to be found in the
events immediately following the play session with Dr Glaun. Despite the session having gone so well
and the children having responded so warmly to their mother, both the father
and Mrs G said that the children were very quiet when they came back to the car
immediately afterwards and then became very upset when asked how it had
gone. They said that they had been forced
by Dr Glaun to hug their mother.
One of them said “We had to;
we had to”. It is
quite clear from this that the boys felt completely unable to admit to their
father and grandmother that they had enjoyed the visit to their mother. They knew that this was not what their
father and grandmother wished to hear and they felt under such pressure to say
that they had not enjoyed it that that they could only explain things by saying
(untruthfully) that they had been forced to hug their mother.
(xi) A further interesting aspect to the evidence
concerning the play session was that the father stated that he had told the
children that they were going to see their mother. Yet, according to Mrs G, the children
went extremely happily into the play session, so much so that Mrs G thought that
they did not realise that they were going to see their mother. Again, this is wholly inconsistent with
children who are truly frightened or reluctant to see their mother.
(xii) Dr Glaun’s description of how the
children related to their mother at the play session is simply inconsistent
with any genuine fear or deeply held reluctance on the part of the children to
see their mother.
71. We do not have to go to so far as to find that
there has been a deliberate campaign of indoctrination although we do not rule
it out. What we do find is that the
strong feelings of hostility of the father and his family towards the mother have
communicated themselves to the children because no effort has been made to conceal
these feelings. The result has been
that the children have been placed in an impossible position because they feel
that by showing any affection towards their mother, they will be being disloyal
to their father and grandmother, both of whom they love very much. The responsibility for this sorry state of
affairs lies fairly and squarely on the shoulders of the father and Mrs G. In particular we have no doubt that Mrs
G is a very influential figure in her family and, if she were to adopt a more
responsible approach towards the question of access, this would in turn affect
the father and result in a dramatic reduction of the distress currently being
suffered by the children.
(2)
Alleged hitting by the mother
72. It is clear the mother was a strong disciplinarian. We cannot rule out the possibility that
she hit the children with sticks but, on the basis of the evidence before us,
we do not make a finding that that has occurred. A summary of our reasons is as follows:-
(i)
The school
states that, during the time that the mother lived in the home, the boys were
happy, well mannered and well cared for and gave no cause for concern.
(ii) Neither the father nor Mrs G felt that there
was anything so untoward that they ought to do something about it.
(iii) No allegation was raised against the mother
until October, several months after she had left. It is perhaps not entirely coincidental
that the allegation was first raised shortly after access had begun to run into
difficulties because of the mother asking the children to lie to their father
about the question of transport.
(iv) The manner in which the allegation of hitting
is made is considered to be somewhat rehearsed and unnatural by those who have
seen it. Thus Mr Taylor found it
very strange that the boys would disclose such information to a stranger they
had only just met; Dr Glaun found it extremely unusual that X wrote on the
whiteboard about his mummy hitting them with five sticks. It was completely out of context. On face value it appeared to her that
the child had been prompted to behave in that manner. Mr Taylor and Mrs Le Couteur both
concurred in thinking that the allegations of the children at the meeting with
their mother on 1st February (which included an allegation by X of
hitting with five sticks), were repeated in a parrot fashion.
(v) There is very little detail about the
allegations such as dates, places or what gave rise to them etc.
(vi) Following an investigation, the police have
decided that there is insufficient evidence to institute any criminal
proceedings. We understand of
course that they have to consider matters from the point of view of the
criminal standard of proof but it is nevertheless a factor which we can weigh
in the balance.
(vii) The children were happy to go for unsupervised
access with the mother in March/April, shortly after the separation.
(viii) In the play session in Dr Glaun’s
presence, the children showed genuine joy in being reunited with their
mother. They showed no sign of any
fear. Dr Glaun stated that children
cannot turn fear on and off.
73. We would add that, even if we had concluded
that hitting had taken place as alleged, this would not have altered any of our
conclusions. The abuse, if it
occurred, was at a moderate level and did not have such an effect as to cause
the father (who was living with the children and the mother) or Mrs G (who was
seeing the children almost daily) to have concerns for their welfare. We would conclude that, even if there
was hitting, the reason for the children’s reluctance over access is
still the alienation by the father and his family, not any real concern on the
part of the children at being left with their mother. Access would still be in the best
interests of the children.
(3)
Access
74. We have no hesitation in concluding, in agreement
with Dr Glaun and Mr Taylor, that access to the mother would be in the best
interests of the children. These
boys of 7 and 8 are entitled to have the opportunity of a natural and loving
relationship with their mother. We
have considered their wishes but in view of their ages and our finding of
parental alienation, these are of limited assistance. The details of the access which we
ordered are set out in the Act of the Court and we do not need to repeat them
here. In short we order that access
should take place immediately, that it should be facilitated by an officer from
the Children’s Department to begin with (because of the lack of access
hitherto) but that it should become unsupervised as soon as practicable. We further order that the matter should
come back to us in approximately one month for a review, so that we might make
any further orders which might be necessary at that time.
(4) The parties’
responsibilities
75. It is the duty of the parent with care of a
child to encourage access to the non resident parent because access is
beneficial for the child. If a
child is put in a position of having divided loyalties because of the attitude
of the carer parent to access, this is likely to be damaging and distressing to
the child. The carer parent must
put the interests of the child ahead of his or her own feelings.
76. It follows that the father and Mrs G must put
aside their own feelings about the mother.
It is their duty to these two boys to persuade them that they (the
father and Mrs G) are positively in favour of access; that they want the
boys to have a natural and loving relationship with their mother. They are never to speak in a negative or
derogatory fashion about the mother in the presence or hearing of the children;
they are never to put the children in a position of having divided loyalties
with the accompanying stress that this causes.
77. If the father and Mrs G cannot bring themselves
to behave with a proper sense of responsibility towards X and Y, the Court will
reluctantly have to consider applying sanctions, not because it wishes to do so
but because it would be left with no alternative if it is to act in the best
interests of the children and encourage their relationship with their
mother. There are a number of such
sanctions but we would mention only fines, imprisonment and ultimately, as in
the case of V
–v- V (Contact: Implacable Hostility) (2004) 2 FLR 851,
the transfer of care and control to the non resident parent, not as a sanction,
but on the grounds that it may be in a child’s best interests to live
with a parent who will positively encourage access to the other parent rather
than to live with the other parent who frustrates access.
78. We have been critical of the father and his
family in this judgment. But the
mother is not free of criticism.
First, she should never have asked the children to keep secret from
their father the fact that they had travelled in the van on that access visit
in September. It is quite wrong for
any parent to seek to persuade children to lie to or keep secrets from the
other. That puts the children in a
very difficult position. Secondly,
even on her own admission, she has let the children down on two occasions by
not turning up for access at Milli’s. In one case she did not even telephone
Milli’s to explain her absence.
Her excuses of having run out of credits on her telephone and not having
been able to arrange transport were extremely unimpressive. One of the most important matters in her
life is to be a good mother to her children and this involves preparation and
organisation so as not to make them feel rejected or let down by her. A third subject of criticism is her
failure to telephone the children in January, the very day after the Court had
emphasised to her the importance of not letting down the children. The mother must do better in future.
79. But none of this is relevant to the question of
access. Access is not a reward for
some mythically perfect parent. It
is in a child’s interest to have a loving relationship with both parents
however imperfect they may be. It
is only in extremely rare cases that a court would be likely to hold that a
parent’s influence was so undesirable that access should be denied
altogether.
Matters of general application
80. The English courts have recently had occasion
to recognise that, in the past, the courts have not been as proactive as they
should have been in ensuring that access takes place despite the efforts of the
parent having care of the child to obstruct or discourage access. It is clear that many non-resident
parents who have failed to gain access have felt badly let down by the
system. We think that this case has
highlighted certain areas where the Court itself, the legal profession and the
Children’s Service could learn lessons for the future and we take this
opportunity of setting those out.
81. In the first place we suggest that all those
whose work involves dealing with questions of access should read and be
familiar with two impressive judgments which describe many of the issues. The first is that of Munby, J in Re D
(Intractable Contact Dispute:Publicity) (2004) 1 FLR 1226 and the second is
that of Bracewell, J in V –v- V (Contact:Implacable Hostility)
(2004) 2 FLR 851. We have drawn on
those two judgments in making the comments which follow. Munby, J summarised the problem in the
two following paragraphs:-
“22 Seen from
a father’s perspective, a case such as this exhibits three particularly
concerning features:
(i) The
appalling delays of the court system exacerbated by the absence of any
meaningful judicial continuity, seemingly endless directions hearings, the lack
of any overall timetable, and the failure of the court to adhere to such
timetable as has been set;
(ii) the court’s failure to
get to grips with the mother’s (groundless) allegations; and
(iii) the court’s failure to get to
grips with the mother’s defiance of its orders and the court’s
failure to enforce its own orders.
24 Seen from a judicial
perspective there are two further particularly concerning features of such
cases:
(i) The all too frequent response
to any significant problem with contact; list the matter for further
directions; reduce contact in the meantime; obtain expert reports; direct the
filing of further evidence – all of which produces only further delay
which, in turn, exacerbates the difficulties and leads eventually to a situation
which may be irretrievable.
(ii) The fact that too often in
such cases we only wake up to the fact that the case is intractable when it is
too late for any effective intervention.”
82. The judgments emphasise that the court system
is inherently adversarial and it is not always particularly well suited to
resolving these difficult matters.
It tends to entrench parental attitudes rather than encourage them to
change. There is much to be said
for expert mediation at an early stage and we would wish to encourage this
wherever possible.
83. However, in many cases, the Court will still
need to be involved and we would emphasise the following points.
(i)
Time is of
the essence. Delay in dealing with
problems of access can mean that the problem is close to insoluble by the time
the Court is in a position to deal with it. Thus:-
(a) Legal advisers for the non-resident parent must
act quickly. They must get the
matter before the Court promptly.
If necessary, they must be insistent. We do not mean to be critical and
everyone concerned is on a steep learning curve; but, in hindsight, the
mother’s lawyers waited far too long before bringing this case before the
Registrar. They attempted to
negotiate without the necessary sense of urgency with the result that the
parties did not come before the Registrar until the 27th August, nearly
five months since the last access.
That was far too long. Where
parents separate and difficulties arise over access, the problem must be nipped
in the bud because five months is a long time in the life of a young child and
parental alienation can become well established during such a period. In this case the matter should have been
brought before the Registrar not later than May.
(b) The Children’s Service must play its
part. At present it apparently
takes some 11 to 12 weeks for a full report on access to be prepared. This seems
too long and we would ask the Service to consider how it could better assist in
these urgent access cases. For
example could some form of ‘mini-report’ be made available on urgent
applications for interim access?
This might involve preliminary thoughts based upon short interviews with
the parties. Similar comments apply in respect of
psychological reports from CAMHS.
(c) The Court administration must be willing to fit
such cases in as a matter of urgency.
A delay in getting before the Court gives an opportunity for alienation
to occur or at least commence. The
Court should take a robust line on interim access. Unless there are very strong grounds for
fearing that access would be bad for a child, interim access should be
awarded. After all, by definition,
the children will have been in the regular presence of the non-resident parent
whilst the parties were living together, which will, if the matter comes before
the Court sufficiently quickly, have been only a short while ago. If there is no report available from the
Children’s Service, the Court should simply take a view and usually order
access rather than put the matter off until a report is available.
(ii) Allegations of misconduct should not
automatically result in matters grinding to a halt. This case provides a glaring
example. The moment the children
alleged that they had been hit with sticks by the mother, the Children’s
Service withdrew and said that it was no longer able to work towards the
preparation of the required reports until completion of the police
investigation. The result was that
the Children’s Service did not interact with the parents or the children
to any material extent between the beginning of October and the latter part of
January. We understand that this
was in accordance with the standing instructions of the Children’s
Service. We urge that these be
reconsidered because the actions of the Service meant that matters were
potentially delayed for some time, which allowed for further alienation to take
place. It should not be assumed
that any allegation of misconduct should necessarily result in access grinding
to a halt or taking place only on a supervised basis until any investigation is
complete. Clearly there will be
some allegations which are of such seriousness that it would be wrong to allow
access in the interim. But these
will be rare. In the vast majority
of cases access should be allowed to continue and the question for decision
will be whether it should be supervised or unsupervised.
(iii) There must be continuity of judicial
manpower. Thus, at the Registrar
level, the same judicial officer must deal with the matter. At the Royal Court level, the same
presiding judge and, so far as practicable, the same Jurats should sit. It is highly undesirable for new judges
to have to come fresh to a matter which has acquired a long history of access
difficulties. This is likely to
lead to inconsistency of approach.
It is the responsibility of the advocates to draw this to the attention
of court officials so as to ensure the necessary arrangements for continuity can
be made.
(iv) Allegations of misconduct should be addressed
speedily. As Munby, J put it at
para 54 of his judgment:-
“False allegations of
misconduct are highly damaging and destructive. I agree with Wall, J when he said in Re
M at para 12 “in an intractable contact dispute, where the
residential parent is putting forward an allegedly factual basis for contact
not taking place, there is no substitute …. for findings by the court as
to whether or not there is any substance to the allegations.” The court should grasp the nettle. Such allegations should be speedily
investigated and resolved, not left to fester unresolved and a continuing
source of friction and dispute.
Court time must be found – and without delay - for fact finding
hearings. Judges must resist the
temptation to delay the evil day in the hope that perhaps the problem will go
away. Judges must also resist the
temptation to put contact ‘on hold’ or to direct that it is to be
supervised, pending investigation of the allegations. And allegations which could have been
made at an earlier stage should be viewed with appropriate scepticism. Once findings have been made, everybody
must thereafter approach the case on the basis of the facts as judicially
found …..”
(v) The Court must take prompt and firm action
where there is defiance of its orders for access. Again, as Munby, J put it:-
“56 Too often at
present, once things start to go wrong, its takes too long – too often
far too long – to get in front of a judge who is in a position to take
potentially decisive action…….
Other things being equal, swift, efficient, enforcement of existing
court orders is surely called for at the first sign of trouble. A flabby judicial response sends a very
damaging message to the defaulting parent, who is encouraged to believe that
court orders can be ignored with impunity, and potentially also to the
child…….. There is no reason why in a case of serious recalcitrance
or defiance where it is possible to establish a breach of the order the court
should not, then and there, make an immediate suspended committal order, so
that the mother can be told in very plain terms that if she again prevents
contact taking place the following Saturday she is likely to find herself in
prison the following week.
57 It may be that
committal is the remedy of last resort but, as Wall, J recognised in Re M
at para 115, the strategy for a case may properly involve the use of
imprisonment. Interestingly he
seems to have accepted (see at para 117) that imprisonment, even for a day,
might in some cases be an appropriate tool in the judicial armoury. I agree. A willingness to impose very short
sentences – 1, 3, or 3 days – may suffice to achieve the necessary
deterrent or coercive effect without significantly impairing a mother’s
ability to look after her children.”
(vi) In this connection the Court should not
hesitate to spell out to the recalcitrant parent the potential consequences of
his or her action. He or she should
be warned that in some cases, as in V -v- V, the Court may ultimately
conclude that it would be in the child’s best interests that care and
control should be transferred to the non-resident parent, who will allow the
child to have a relationship with both parents, rather than to continue to live
with the recalcitrant parent who obstructs the child having a relationship with
both. This may be so even if, had
there been no problem with access, care and control would have remained unaltered.
84. We have on the whole used the expression
‘the Court’ in the previous paragraph. The Court of course includes both the
Registrar and the Inferior Number.
In most cases questions of access will come before the Registrar in the
first place and it is he who should bear in mind and apply the principles we
have endeavoured to describe. In
difficult cases he may feel the need to refer the matter to the Royal Court. Whilst not encouraging the Registrar to
send up a case before it is necessary, he should not retain the case for too
long once he concludes that matters are not satisfactory and that the
additional powers of the Royal Court
would be of assistance.
85. The guidance we have sought to give is merely
that. Ultimately each case must
turn on its own facts and the order which must be made is that which is in the
best interests of the child in the particular case. The guidance is aimed primarily at cases
where action can be taken in the early stages of an access dispute, perhaps
shortly after separation. In other
cases where the matter has a long history before coming before the Court, a modified
approach may be required. However we would hope that the guidance
which we have given to the legal profession, to the experts and to the Court
itself, will result in fewer cases dragging on until it is too late to achieve
the desired result of children not being deprived of a proper relationship with
both parents.
Authorities
Re S (Contact: Promoting Relationship
with Absent Parent) (2004) 1 FLR 1279.
Re T (1993) 2 FLR 450.
Re O (Contact: Imposition of Conditions) (1995) 2
FLR124.
Re O (2004) 1 FLR 1258.
Re T (Contact: Alienation; permission
to appeal) (2003) 1 FLR 531.
Re D (Intractable contact Dispute:
Publicity) (2004) 1 FLR 1226.
V – v – V (Contact: Implacable Hostility) (2004) 2 FLR 851.