This is a report from observing a final hearing in the Central London Family Court as a legal blogger and applying for the usual statutory bar on reporting to be lifted, so as to be able to publish this anonymised report. It’s split into two parts as it’s long. Part One is my report of the background and the hearing. Part Two contains some observations on the hearing and reflections on the family justice system process for dealing with cases like this more generally.
The Background and the Welfare Hearing
This was a “welfare” hearing to decide the final living and contact arrangements for a 6-year-old boy, following his father’s (2019) application to move him abroad to live with him in France.
It was also about “H-N”, the child at the heart of one of four cases considered by the Court of Appeal in H-N & others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448. The Court of Appeal delivered a ‘landmark’ judgment in response to consolidated appeals of fact-finding decisions about allegations (variously) of domestic abuse, rape, and coercive and controlling behaviour.
H-N’S mother had successfully appealed HHJ Tolson’s findings on her allegations of rape and domestic abuse against H-N’s father. The Court of Appeal had set aside those findings, partly because of the judge’s failure to properly consider whether patterns of behaviour (including admissions H-N’s father had made) might amount to abuse or coercive and controlling behaviour and the possible impact of that; over focus on H-N’s mother’s parenting capacity and mental health; and comments that implied unwarranted pre-conceived ideas about abuse allegations. H-N’s case had been sent back to the Central Family Court for re consideration and the Court of Appeal had given guidance on the right way for courts to manage allegations of controlling and coercive behaviour etc.
Her Honour Judge Roberts duly conducted a new fact-finding hearing in October 2021, but like Judge Tolson, she too decided the relationship had not been characterised by any pattern of abuse, violence, or coercive control perpetrated by H-N’s father, though it had included some situational abuse. She considered H-N’s mother’s perceptions of H-N’s father as abusive to be rooted significantly in her own vulnerabilities and self-delusion. That judgment can be read here.
HHJ Roberts’ ‘findings’ judgment became the factual basis for subsequent psychiatric assessments of both parents; an assessment by a clinical psychologist; and the final report of H-N’s (third) Cafcass Guardian, that would inform her final ‘welfare’ decisions at the hearing I observed.
It felt like a good time to go legal blogging, as a new era of family court transparency gets underway. The door to this family court felt open, with no objections to my presence, nor to my applications to see position statements and report without identifying the family. I had emailed ahead, as a courtesy (though this hadn’t reached the judge or usher) and taken leaflets for the non-lawyers.
I was struck, however, by some gaps (and what felt like tensions), not just between the judge’s perceptions and those of H-N’s mother but also between the judge’s analysis and that of H-N’s guardian, in particular, and wondered if they might suggest inconsistency in how the family courts are recognising and responding to allegations of domestic abuse and coercive control.
Certainly, the gap between the perceptions of domestic abuse specialists and survivors, and the family courts – on progress since the Harm Report – remains stubbornly wide despite reforms and pilots underway (in North Wales and Dorset) of a safer model for children of parents alleging abuse. Hearings about children like H-N are of interest to the public and reporters, including legal bloggers.
I was also struck by just how challenging it was to properly follow a welfare hearing such as this without being able to read the expert and professional reports underpinning it.
First a bit of background:
H-N’s parents had met in the UK in 2013. They had lived together very briefly before H-N’s father re-located back to France (where his older children lived) before H-N was born in 2016, though the relationship between the parents had continued. An Initial Child Protection Conference had taken place on referral from a hospital social worker in 2017, though both parents seemed to have denied difficulties at that point. There had been other referrals too that didn’t lead to action. H-N lived in London with his mother and older maternal half-brother. He saw his father and sometimes his half-brothers when the parents visited each other.
Hague Convention
In December 2018 (when H-N would have been a toddler), his mother had left both boys with H-N’s father in France for about 3 weeks. She then ended the relationship by telephone just before returning to collect them. However, H-N’s father (who had also looked after both boys for about 3 months on a previous occasion) kept H-N until Hague Convention Orders in France secured his return home after some 9 months separation from his mother and brother.
H-N’s father had then made a referral to children’s services who had found no concerns about H-N in his mother’s care.
Child Arrangements Order application
H-N’s father applied to the English court for an order that H-N live with him and relocate to France. H-N’s mother said that the court should take into account when making welfare decisions that H-N’s father had been abusive and controlling, including smashing things, pinning her to the wall by her throat twice, raping her, punching a wall, and holding a knife to his arm in front of her threatening suicide if she left, as well as being verbally, emotionally and psychologically abusive to H-N.
H-N’s father admitted punching her once early in the relationship, slapping her in the face when she was 8 months pregnant, punching a wall, holding the blunt side of a knife to his wrist in front of her, wrongfully retaining H-N, and being involved in an altercation with her in January 2019 when she tried unsuccessfully to take H-N home, that involved holding her by the arms and her coat getting ripped. He otherwise denied the allegations, characterising each incident as less serious than alleged, denying a pattern of abuse or coercive control, and saying he’d simply been trying to support an inadequate, volatile parent with mental health difficulties, now fabricating allegations against him. He denied abuse of H-N.
Findings
Findings were made by HHJ Tolson on 28 August 2020; set aside by the Court of Appeal on 30 March 2021; and made afresh, in the Central Family Court by HHJ Roberts on 5 October 2021. By this time H-N, now 5 years old, hadn’t seen his father for about two years (which included a pandemic), save for video contact from early 2021.
The new findings
HHJ Roberts permitted a recrafted schedule of allegations including a separate heading for coercive and controlling behaviour and explicitly considered overall patterns of abuse and coercive control, including H-N’s father’s admissions. The judgment tells us she had ensured special measures, and asked pre submitted questions of H-N’s mother herself on behalf of H-N’s father. In the judgment she said she had been careful to avoid reading HHJ Tolson’s judgment (beyond the bits quoted in the appeal judgment) to avoid preconceived ideas and had read ‘helpful’ sections of the Harm Report on evidential difficulties in domestic abuse cases as well as Practice Direction 12J and caselaw.
Nevertheless, she too had found H-N’s mother’s allegations of a relationship characterised by domestic abuse and coercive control, including physical and sexual violence, not proved on the evidence. The allegations, beyond those H-N’s father admitted (and one new finding about both parents, about delaying treatment for H-N), were therefore to be treated as not having occurred for all purposes thereafter. In broad terms, the judge said:
- She didn’t believe H-N’s mother’s allegations beyond the limited admissions H-N’s father had already made, preferring his evidence to hers in most instances where their evidence conflicted. Even allowing for the impact of anxiety and trauma from abuse on the way an alleged victim may give evidence, she didn’t find H-N’s mother a convincing witness and didn’t believe her, based on (among other things) her demeanour. Those other things included:
- There were just too many discrepancies between H-N’s mother’s account and the documentary evidence of what she’d said to professionals, and the emails and texts, unaccounted for by the fact that victims of abuse often initially present the relationship as non-abusive
- Discrepancies between H-N’s mother’s allegations and her actions, like leaving the children with H-N’s father for 3 weeks at a time she now claimed he’d recently lunged at H-N, violently shaken him and locked him in a dark room
- Evidence that H-N’s mother’s mental health was fragile, with anxious and volatile behaviours, preceding as well as during the relationship
- Evidence that H-N’s father was trying to support her much of the time with H-N’s mother saying so herself at earlier stages
- H-N’s mother had presented evidence in a partial way at times, shorn of context that would have showed matters in a different light. Some of her accounts were exaggerated and embellished
- There was more aggression and abuse from the mother to the father than from the father to the mother in the documentary evidence.
- By contrast, she did largely believe H-N’s father, who she found for the most part to be a convincing witness, when looking at the evidence as a whole (including how he appeared in the papers and in court)
- The limited admissions he had made of punching her in the shoulder early in the relationship and slapping her when 8 eight months pregnant were abuse but didn’t (in the Judge’s view) evidence a relationship characterised by domestic abuse or coercive and controlling behaviour
- HHJ Roberts didn’t think the father’s wrongful retention of H-N, referral of H-N’s mother to social services after the French courts ordered his return, and application in the English court for an order H-N move to France to live with him were motivated by anything other than by concern for H-N. They were not part of a pattern of abuse or controlling and coercive behaviour
- Holding a knife to his arm to make her see how she made him feel was ‘unwise’ but not significant nor part of a pattern of abuse
- She believed H-N’s father’s claim that he had reflected on his ways and changed after 2018, possibly following a night in Police cells
- H-N’s mother’s beliefs about H-N’s father and the relationship were rooted significantly in her own anxiety and false perceptions
- Her allegations of abuse and harsh parenting of H-N by his father were not proved either. These were parents with very different character traits and ideas about child-rearing. Both were responsible for delay in taking H-N to hospital after he fractured his skull in a fall, albeit H-N’s father was more responsible since they were in France.
The final ‘welfare’ hearing
By the time of the (eventual) final hearing at the end of September/early October 2022, H-N was 6 and had been seeing his father regularly in the UK when he came over, including for a week’s staying contact in August 2022. H-N’s mother retained her Court of Appeal legal team. H-N’s father was unrepresented (as he had been at the second fact finding hearing), not being entitled to legal aid and unable to pay the continuing legal costs.
It was an attended final hearing save for judgment hand down and an extra (implementation) hearing requiring the local authority to attend, which were remote. I was there in person for the psychologist’s evidence on day 1 and the judge and guardian’s questions to the mother, plus the guardian’s evidence, on day 3. I couldn’t make day 2 when H-N’s parent’s gave evidence, because of my own diary. I did listen to the judgment hand down and the extra implementation hearing both of which were heard remotely. I read the published judgments from HHJ Tolson’s findings, the Court of Appeal decision to overturn them, and HHJ Roberts new findings.
The parents
A striking feature of the final hearing was that H-N’s mother didn’t accept HHJ Robert’s findings (though hadn’t appealed them). She’d been frank about that in interviews with professionals and her own evidence. She accepted all the Guardian’s recommendations and her concern that her own anxieties might pose risk to H-N’s need for a good relationship with his father going forward if H-N remained with her, but said she’d found a way to compartmentalise her own beliefs from the need to encourage H-N in his relationship with his father. As the progress during proceedings to regular staying contact including for a week at a time demonstrated. She said she wanted professional help and the structure of a detailed court order and was committed to therapy.
H-N’s father by now said he was the victim of the mother’s emotional and verbal abuse and at risk of more false allegations. He was asking the judge to make orders for H-N to live with him in France notwithstanding the guardian’s recommendation that H-N stay with his mother and brother with a Family Assistance Order, rather than be uprooted again, which she had described as ‘finely balanced’. (I’m unsure how firm the psychologist recommendations had been in his report as opposed to his oral evidence that I later heard). H-N’s father thought all H-N’s mother’s contact should be in France and supervised.
The expert evidence (and reporters not seeing documents)
I asked for the position statements but came to realise I wanted to read the reports of the guardian and psychologist in full. But I was acutely aware that the President had recently suggested reporters probably shouldn’t routinely see such reports, even just to understand what’s going on, in the pilots of more open hearings from early next year, and I’d already been asked to put my request for position statements on hold while the psychologist gave evidence. (The pilot guidance has since been published on that basis here). I was cobbling together what the expert evidential canvas even consisted off (never mind its nuanced content) from bits the parties thought important enough to refer to in position statements, what the judge prioritised when delivering her judgment, and hearing the psychologist and guardian in oral evidence. It left me unclear, and less able to be sure of accuracy than I would have liked.
Psychiatric
The psychiatrist’s evidence wasn’t challenged. I gleaned eventually from judgment hand down that she had diagnosed traits (short of clinical diagnosis) of emotionally unstable personality disorder in H-N’s mother and found no mental disorder in H-N’s father, though had noted that his relationships with both parents of his children had included violence [the subsequently published final judgment gives more information about this but I didn’t have it when listening to the case and writing the bulk of this post].
Psychological
The (HCPC registered) clinical psychologist had been called to give evidence under cross examination on his conclusions and expressed concern about the impact of continued conflict on H-N and what he saw as character traits of each parent. He spoke of H-N’s father’s critical, persistent nature and unilateral actions including retaining him that had caused H-N great harm and of H-N’s mother’s sometimes wrongful attribution of complex inter-personal dynamics to H-N’s father. He said H-N’s mother seemed to have worked hard to prepare H-N for the time with his father when he had met H-N, as well as in repairing H-N’s attachments, and that H-N showed signs of a healthy attachment to her. He saw potential risks to H-N from the ongoing conflict and from his mother’s perception of his father, and a risk that she might not maintain contact without the structure of court (though the contact so far boded well).
However, he was most worried about H-N’s ability to survive yet another attachment rupture, if moved to his father in France now. H-N, he thought, could live with either parent and needed contact with both, but a move from his mother now would be traumatic with risk of damage to his life-long attachment capacity. He was a vulnerable child, developmentally immature for his 6 years, who had just recovered from multiple separations, first from his mother and then from his father. If H-N did stay with his mother, he would benefit from mainstream education to mitigate some of the impact of his mother’s anxiety, help with contact handovers, and allow H-N space away from his mother to build his own inner world.
He didn’t think H-N’s father’s insistence on all his contact with his mother being supervised and in France if H-N lived with him necessarily indicated he wouldn’t promote contact. It could be because of worries the father had mentioned about future allegations. He wondered if he would have maintained that position with legal advice – and indeed, H-N’s father later changed his position on this.
I’ve not named the experts, simply because I think I may have inadvertently created that expectation by telling the Court I had no interest in doing so, and in any event, they are not my focus in this report. I imagine HHJ Roberts may send the judgment from her welfare decision to TNA for publication, given she ordered a transcript and the judgments from all other stages are published, in which case she is likely to name the experts, though not the local authority to protect the anonymity of the family. I’ll link to that judgment when I see it. [UPDATE: It was published here just before this blog went to press and the experts are named]
H-N’s Cafcass Guardian
H-N’s guardian saw risks to H-N going forward, whichever household formed his main base, arising not only from the mother’s perception of the father even after the further findings, but also from the father’s continuing attitude about the mother and her capacity to parent. The local authority had seen no parenting problem on assessment, and the guardian found the mother to be hugely child centric and parenting well in the main, yet H-N’s father continued to insist contact would not be safe if H-N lived in France with him unless supervised. He scored H-N’s mother 3 out of 10 for parenting when asked. Both were completely unable to co parent H-N currently. Her decision was very finely balanced, but in her view H-N should live with his mother in the UK, with professional support for at least a year through a Family Assistance Order that would among other things help with contact arrangements, and a referral to CAMHS. It wasn’t fair to H-N not to test this fully for him before contemplating anything else. She was persuaded by the psychologist’s oral evidence that maintaining momentum by moving staying contact swiftly to taking place in France was better for H-N than her more cautious, initial proposals for fortnightly contact in the UK before a move to contact in France in 6 months.
H-N’s Guardian thought H-N needed both his parents to do ongoing work to achieve basic co-parenting for him. His mother should continue her therapy. His father should continue his work on interpersonal relationships, including an understanding of the dynamics of domestic abuse, to pro-actively promote co -parenting. Key documents should go to relevant professionals. HHJ Roberts had decided against H-N’s father’s treating ‘therapist’ in France giving evidence but had permitted H-N’s guardian to send some written questions to him which had been translated. They included whether he had done, or would recommend, any work with H-N’s father about domestic abuse, given his admissions of violence in two previous relationships. H-N’s guardian had also said H-N’s father should undergo a parenting assessment, should any transfer of H-N’s residence later be required.
In the absence of any evidence home schooling wasn’t working for H-N or his brother, H-N’s Guardian remained neutral on the Judge’s suggestion of compelling H-N’s mother to put him in mainstream school, whilst acknowledging there could be some benefits.
Neither she nor any other Cafcass social worker could hold the case and do the actual social work with the family under any Family Assistance Order (FAO).
The outcome
The orders
HHJ Roberts delivered judgment remotely a few days later. She refused H-N’s father’s applications and made a Child Arrangements Order for H-N to live with his mother with a Family Assistance Order to the relevant local authority who she ordered to attend on a future date before her to ensure their engagement. She made the order H-N live with his mother conditional on her putting him in mainstream school full time by January 2023. She ordered a week’s staying contact with his father in the Christmas holidays then half of all holidays and alternate half terms from 2023 with handovers from the UK airport or H-N’s school and returns to the London airport or H-N’s home. She left H-N’s mother free to choose whether to attend handovers or use a third party. She ordered an hour’s video contact each week to the parent H-N wasn’t with at the time. H-N was declared habitually resident in England and Wales and H-N’s mother should hold his passport. She declined to order H-N’s father to contribute to the costs of registering orders in France. She prohibited either parent from recording to gather evidence, and H-N’s mother from suspending contact without the court’s permission, such as on advice of a social worker or police officer following an allegation via H-N or his mother. She ordered that her judgment be transcribed at public expense and that both judgments be sent with a summary from the Guardian’s Counsel and the psychological, psychiatric, and guardian’s report, to the relevant local authority and CAMHS. The psychologist’s report and a copy of her order should go to the school and the summary and her new judgment to the psychologist and psychiatrist. The parents were to have permission to disclose the reports to their own practitioners.
Reasons and comments
HHJ Roberts said she’d found the case hard because of the earlier proceedings, the length of proceedings, and the father being a litigant in person from another jurisdiction speaking a different language. The distance had forced her into an all or nothing approach she hadn’t wanted for H-N. Had his father lived in the UK she would have ordered shared residence, despite the problems.
The psychologist’s evidence
She said the parents’ oral evidence was nothing new and hadn’t influenced her decision, whilst the expert evidence had been key, particularly that of the psychologist, which she adopted in full. Again, I wished I could read that whole report, with all its nuance – and go back over the judge’s exact words. What I thought I’d heard him say in oral evidence didn’t seem quite the same to me as the judge’s summary of it in certain respects. Not that it mattered at this point. The determining factor now was his evidence supported by the guardian that it wasn’t in H-N’s interests to be disrupted again, at this point at least, with reference to S.1 (3) C of the Children Act).
The psychiatric evidence
HHJ Roberts accepted the psychiatric evidence in full too, citing issues with H-N’s mother’s self-regulation and tendencies to externalise blame by presenting as a victim of both the father and the court, as well as the fact that the father’s prior relationship had also involved violence. (I struggled to be sure of distinguishing what the psychiatrist had said verbatim from how it was being applied without being able to refer to the report directly).
H-N’s guardian’s evidence
HHJ Roberts dealt with the gap between H-N’s guardian’s analysis and her own by rejecting parts of the guardian’s evidence, on the following basis. The guardian had not heard the finding of fact hearing, being only appointed in May 2022 (due to ill health of a former guardian) and (like others) had found it hard to engage H-N directly. Her proposal to explore with H-N’s father’s therapist how he would benefit from an understanding of the dynamics of coercive control was, in her view, misplaced given her finding that the relationship hadn’t amounted to one of coercive and controlling behaviour. (The Judge had also dismissed the translated replies of H-N’s father’s treating therapist as eccentric and not overly helpful though I don’t know the basis of that). In her view too, the guardian had gone too far, beyond her findings, and beyond the other experts in giving equal weight to the parental difficulties, perhaps even leaning towards putting greater weight on H-N’s father’s difficulties. She wondered if the guardian had been hampered by her lack of involvement, albeit as the judge went on to acknowledge, H-N needed both parents in his life and both parents needed to make changes, the mother in not seeing the father as a danger, and the father in refraining from criticising the mother’s parenting. She agreed with the guardian on risks to H-N from conflict and further allegations from either parent. She thought her suggestion that the parents owed it to H-N to try to make it work rather than move him now was well put. She was surprised at the guardian’s neutrality on compelling H-N’s mother to put him in school.
The future
The Judge was emphatic that if the parents didn’t change their behaviour, she was sure H-N would suffer significant harm, based on the psychologist and guardian’s evidence. If H-N’s parents couldn’t make co-parenting work, she’d be likely to order a move to France. Whilst both parents needed therapy, it was H-N’s mother who had by far the greater journey to travel. Her individual therapy was critical and urgent. She couldn’t see a way for H-N to be safeguarded going forward unless both parents accepted her judgments.
Making the Family Assistance Order meaningful in support of her order
The judge then set about a further hearing a few days later with the relevant local authority attending, to ensure as best she could that the Family Assistance Order would be meaningful for H-N whose situation she considered exceptional. Her priorities for him were that his case be actually allocated to a social worker and that he be supported with his contact arrangements, CAMHS referral and getting him into mainstream school. In her experience, overstretched councils were now often so unable to prioritise FAOs that they were effectively ignored. The response to the guardian’s referral had not been encouraging but once in front of the judge, this council were constructive and reassuring on the identified priorities for H-N. The amount of court time and industry for one child were notable.
PART TWO OF THIS POST (Observations and reflections ) is here
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