There are three sides to every story – your side, my side and the truth.

The judgment in Gibbs v Gibbs [2017] EWHC 1700 (Fam) was handed down on 29th June 2017. It raises some immediate and interesting questions about how the family courts deal with evidence and what are the limits of the family court’s influence to cope with litigants who cannot or will not accept the consequences of the forensic process. This case involved a mother who accepted she could not prove her allegations against the father, a court who determined that therefore they weren’t true – but 16 years later the mother was sent to prison for repeatedly publishing her allegations to hundreds of recipients via thousands of emails.

This post follows as a ‘Part II’ to my earlier consideration of the limits of the court’s influence in a case involving two parents deemed ‘as bad as each other’. However, the situation between Mr and Mrs Gibbs ppears to be much more clear cut about who is the more blameworthy parent.

What happened in this case?

The facts are hopefully very unusual. In summary, Mr Justice Hayden was dealing with the father Mr Gibb’s application to send the mother Mrs Gibbs to prison for breach of a court order that forbid her from sending defamatory emails to 100s of people, alleging that the father had physically, sexually and emotionally abused their children.

The parties first came to court in 2001 before DJ Hayes, as the mother wanted to stop the father seeing the children. DJ Hayes heard a ‘finding of fact’, considered the documentary evidence and witness accounts and preferred the father’s evidence, commenting:

The difficulty is that I don’t think Mrs Gibbs is right in her version of the facts, but she believes she is right. She indicated that if I don’t think he is guilty of emotional abuse I will have made a mistake. I don’t think I have. She said she might appeal, she has the right but she must bear in mind I make my decision on the wealth of evidence I have read and heard. I think both may have abused emotionally. Children should be protected from the battle of wills. Both parties need to put the interests of the children first.

Depressingly for those lawyers (myself included) who often optimistically call for a finding of fact on the basis that it will ‘clear the air’ and let everyone move on, this dispute persisted into 2017.

The mother appealed unsuccessfully. About a year later the parents were back in court, before Mr Justice Munby (as he then was), the mother again raising allegations that the father had abused the children. However, just as the hearing was about to begin, she conceded that she had ‘no prospect’ of proving her allegations against the father. It was clear that the mother had legal advice and opportunity to consider her position. A consent order recorded that she had chosen not to pursue her allegations, thus contact between father and child B should proceed on the basis that there was no truth in them and they must not be repeated.

However barely six months later, the parties appeared before Mr Justice Johnson in November 2002. Having heard the mother give evidence, he found she never intended to abide by any agreement to promote contact, the allegations against the father were unfounded and the mother ‘had no genuine belief in them’. She was repeating the allegations in the wider community because she wanted to hurt the father and had recruited others to her cause, one of whom threatened the father at court. 

Contact between B and her father, unsurprisingly, did not progress. By 2004 the parties were before Mr Justice Ryder who had to recognise that despite there being no findings against the father, his daughter did not want to see him and could not be forced. The Judge said:

absent cogent reasons to the contrary it cannot be right that a young woman grows up in the absence of one of her parents’ care when that parent is alive. It is morally and legally offensive. I say these words in the clearest way I possibly can. But, to impose upon her something that she cannot, at this stage, receive would be just as offensive. I decline to do so for the time being.

The father’s efforts to have a relationship with his daughter thus dwindled to indirect contact only. This had at least the benefit of ending litigation between the parties and the case did not come back to court until June 2017 before Mrs Justice Roberts. The father wished to prevent the mother from sending further defamatory emails which accused him of  sexual, emotional and physical abuse. ‘Thousands’ had already been sent.

The mother was ordered not to publish any information about these proceedings concerning the father “whether by print, electronic form, or on the world wide web and should not instruct, encourage or in any way suggest that another person should do so”

Almost immediately after this order was made, the mother was in breach. She resumed her ‘barrage’ of emails. Paragraph 22 of the judgment sets out just how extensively she breached the order, sending emails to many 100s of recipients.

Hayden J commented that he was reluctant to send the mother to prison but:

This case has been exhaustively litigated. Three senior judges have reviewed the scope of the protective framework, and Mrs Gibbs has flagrantly undermined or actively disobeyed Court Orders. She tells me that she has come to Court expecting to go to prison and is ‘happy, proud, and completely at peace to be in contempt of court’. In an email directed to the President of the Family Division she states ‘short of killing me or having me killed, you will not silence me…’

The Judge considered the procedural and evidential requirements of an application to send someone to prison and was happy they had been met in this case

In the light of the mother’s continued defiance, unwillingness to change, lack of insight on the impact of her behaviour, not only on Mr Gibbs but, I strongly suspect on her children too, I am left with no opportunity other than to impose an immediate custodial sentence which reflects the nature and consequences of the breach. In the circumstances Mrs Gibbs should be committed to prison for a period of 9 months.

Why is it interesting?

This case throws up a what in my opinion are the three key issues of perennial difficulty and frustration for both lawyers and parents in private law disputes. Our collective failure to provide a solution to these issues – or even to recognise that the family court is unlikely to be the arena where they are solved – is the cause of much misery for families when parents separate and relationships sour.

What do you do with a parent who genuinely believes their allegations to be true but cannot prove them?

I will pass over the interesting divide here between three judges – 2 of whom thought the mother ‘had come to believe’ her allegations and one who thought she had ‘no genuine belief’ but was pursuing a campaign against the father. I will assume that this mother had come to believe what she was saying was true. The only other explanation is that she is a remorseless psychopath – which is rare.

I would prefer to accept that she did genuinely believe what she is saying. Our developing understanding about how memories are created, stored and retrieved shows that it is quite possible for people to develop a very firm view that something ‘happened’ despite clear evidence that it did not, or could not. Recounting your  ‘memories’ is more a process of constant ‘reconstruction’ of events which is very susceptible to outside influence and corruption – It is not simply replaying some kind of mental video recording which does not change over time (note for example the work of Elizabeth Loftus about how she was able to convince people they ‘remembered’ an event that never actually happened).

A growing dislike or resentment of a partner over many years is clearly fertile soil in which to plant all kind of belief and suspicion about behaviour which – if relations were good and happy – would be excused or even not noticed. Further, the dangerous mantra of ‘I believe’ prior to any investigation about what happened, and use of terminology such as ‘victim’ when what is meant is ‘complainant’, risks further cementing the possibility that what we say we ‘remember’ bears little resemblance to reality.

Either way – if this mother was genuine but irrational OR not genuine and pursuing a campaign of hatred against the father, it was highly unlikely a finding of fact was going to change much in her attitude and approach.

How do you explain the operation of the burden and standard of proof to parents?

Hearings in the family courts (except for applications to send someone to prison) operate on the ‘civil standard of proof’ which is the balance of probabilities. In short, can you prove something is 51% likely to have happened. I – and others – have expressed concern about the ‘weight’ put on this low standard of proof. As happened here, if you cannot prove your allegations to this standard, or chose not to try to prove them, the court and every other state agency must proceed on the basis that the allegations are NOT true and abuse did NOT happen. It’s a very stark binary and can have some very far reaching consequences. The Transparency Project have discussed this issue with regard to the murder of Ellie Butler, where her father was previously ‘exonerated’ by a family court against any allegation that he had hurt her, on the civil standard of proof.

Unsurprisingly, it can be very difficult for parents to accept that something ‘may’ be true but because it could not be proved to the required standard, the court will treat it as ‘untrue’ as a matter of fact. Disputes about families and children very rarely have the type of contemporaneous documentary evidence that can provide a firm foundation for any finding of fact. Problems arise out of the ebb and flow of family life; by its very nature this often unfolds in private and is not recorded.

I know very little of the evidence that was heard by DJ Hayes but reference is made to documents and evidence from third parties. It appears that neither child at any stage gave any evidence. But there does appear to be some indication of evidence that went beyond the mere assertions of each party. However, if the mother here had a genuine belief that what she was saying was true, it’s easy to see how she would not have struggled to accept the finding of fact process and its low standard of proof as any reassurance that she had ‘got it wrong’.

I note with interest DJ Hayes comment that ‘both’ parents ‘may’ have abused the children emotionally. That is not expanded upon and I have no idea what behaviour of the father prompted that comment. However, it’s not hard to see how comments such as these could be a handy peg on which to hang a belief that the father was abusive. I wonder if such speculative comments are helpful in a judgment which is directed at making findings – but of course DJ Hayes was not to know how this case would unfurl 16 years later.

What are we going to to to enforce contact orders when one parent simply refuses to accept the other parent is not dangerous or harmful?

This is the really big and difficult issue facing the courts in private family law disputes. The comment from Ryder J is sobering in its directness and its starkness. What happened here was both morally and legally offensive. But he could not force contact upon a child who did not want it. The courts do not have easy access to the kind of therapeutic intervention that would be needed, and in any event, could not force such intervention on an unwilling parent or an unwilling child.

This mother did go to prison, which may be cheering to some of the Father’s Rights Activists. But she didn’t go to prison for breaching a contact order – and it is difficult to see how sending her to prison in 2004 or even earlier would have made any difference to the situation as no doubt pretty quickly the children had been sufficiently exposed to her narrative to be very resistant to seeing their father.

Of course, had the courts been equipped with the crystal ball they are so often criticised for lacking, and been able to see what this mother would be doing in 2017, no doubt this would have been one of those rare cases where the children should have been removed from her care and, if unwilling to live with their father, been placed local authority foster care to protect them from significant emotional harm.

Conclusions

But, as ever, life can only be understood backwards, but must be lived forwards. The hopes expressed by Munby J (as he then was) that accepting ‘the truth’ would fix everything, are forlorn hopes we family lawyers hear very frequently. That parties can ‘move on’ ‘grow up’ and ‘put their children first’. As I commented in an earlier post about the two warring parents who forfeited their parental responsibility to the court, not every parent is either willing or even capable of moving past their own immediate negative emotional response to the other parent.

So I suppose all I can usefully do is repeat my earlier pleas – don’t blame the family courts for problems which are far beyond their reach to fix. I sadly don’t have much clue about what we can do to try and help people ‘mend’ dysfunctional relationships or avoid them altogether – but one think I am very clear about is, that by the time one parent is wedded to false allegations against the other parent, the family justice system has very little ability to make any kind of dent in that.