PART 4 COMMENT

This is the fourth and final part of a four part blog series. Part 1 is here, and links to parts 2 and 3.

Reminder : To ensure that the child and family are not identified I am not allowed to reveal whether the child is a boy or a girl, but to make the posts easier to write and read I am referring to the child using female pronouns (she /her, daughter etc).

This part of the blog post is a reflection of that process of scrutiny, using my legal knowledge and experience in practice. Before I begin, I will repeat the last passage from the previous part of this blog series:

Since the hearing I have spent a considerable amount of time thinking about what and how I will tackle the write up of this case, and a good chunk of time writing and rewriting. Some of what I have written may be uncomfortable for the professional participants in the hearing to read – and it has been uncomfortable for me, as a fellow professional to write. However, there is little point in observing a hearing if the account I give is inauthentic and if I am only prepared to say things that are palatable. The fact that I have a foot in both camps (independent observer and seasoned insider) means that I have an insight into what is going on in the hearings I observe – and how it compares to other similar cases I have worked on myself – insights that a journalist or non-legal observer would not have. That means I have a responsibility to scrutinise with fairness and to say candidly what I see.

I gave this series of blog posts the title : ‘Stumbling across a paradigm case – the hardest legal blogging expedition so far…’ It really was. I’ve never written so much about a single hearing, or spent so long on a post. There has been much wrestling behind the scenes before I was ready to hit the ‘publish’ button…

I sat through the hearing with a profound sense of discomfort. Fortunately, I was on mute and with camera off (at the invitation of the judge), because at times I am sure my face revealed my horror at what appeared to be unfolding. I say ‘appeared’ because the view I was getting in real time, and without any background information was distorted and obscured. Having read two judgments, I now know a lot more and have reassessed accordingly. In most cases, one can build up a reasonable picture of the background, issues and dynamics at play by peering into the gaps between the questions asked, the submissions made and the to and fro between opposing lawyers or parties in the course of the hearing. Here though, only one side of the coin was visible, so the picture that emerged was very two dimensional. Although I had guessed they might be features, there was no direct mention by anyone present of either alienation or domestic abuse until closing submissions after evidence had concluded, and only in passing. Questioning on the father’s past behaviour was approached by the judge tangentially (partly because of the limitations on the judge as questioner and partly because of the judge’s view as to the relevance of these issues, I suspect).

I had not known until the hearing began that it might proceed in the absence of the mother, but even before issues around my attendance were tackled, the judge had made enquiries of the mother’s whereabouts. I was aware that the issue was a transfer of residence, so my instinctive reaction to the decision to proceed was one of surprise and concern – though a better understanding of the lengthy background and the mother’s behaviour does explain that decision better than I could understand it at the time. There had been extensive delay, significant effort to re-engage and contact the mother and in essence she seemed to be disrespectful of the process and the orders of the court.

It was clear to me from the outset that the judge was also uncomfortable about the situation he found himself in, and that he was doing his best to test and clarify the evidence before making a decision. The Guardian’s position and his alignment with the position of the father, meant that the judge did not get a lot of assistance from the child’s lawyer in teasing out the issues through questioning the father, so the judge asked a raft of questions himself. But when a judge asks questions he must be careful to preserve neutrality, and so this sort of questioning is often less direct.

Astonishingly, it was only through those judicial questions that it emerged (quite inadvertently as a result of questions about ‘change’) that the father would be returning to full time study imminently whilst maintaining weekend work, and therefore it seemed inevitable that his partner taking on the majority of the care of this little girl – a partner who barely knew Molly, who was already caring for a baby and a child of school age, and about whom the court had asked for more information in February, but which the Guardian had not come up with. This was one of the reasons for the adjournment. In my view, the further information the judge was provided with was thin, and the attention paid to this significant feature of the case was minimal. The Guardian did not appraise the significance of it in his oral evidence before reaffirming his recommendation, and there was no explanation given as to how this had not been picked up sooner. This was perplexing to me as an outsider. It is possible this information was not new, but was contained in the written material I did not see – but the judge certainly appeared to respond to the answers as if they contained new information.

The judge was clearly not keen on making the draconian order he was being asked to make without being sure it was really necessary – he elicited the father’s agreement to the proposition that it would be better for Molly to stay in her mother’s care IF consistent contact could be achieved. The real issue though was whether it could be achieved – the evidence seemed pretty clear that it was unlikely to be achieved by simply continuing to make orders that the mother would sometimes adhere to and sometimes ignore or breach.

But as regards the question of impact on the child – the balancing of the two options – this was another area of opacity. The father agreed with the judge that Molly’s world would be ‘turned upside down’ by a move, but seemed confident she would settle quite quickly – and his confidence wasn’t really explored. Again, without real challenge it was hard to get to grips with how much the father really appreciated that there could be a very distressing period during and after a move that might be challenging for the whole family – Molly, her father, the partner and the partner’s older child. A household, remember, which had not long ago adjusted to the arrival of a new baby and was about to be adjusting to the father beginning full time study whilst also working. Discussions about the impact of the move upon the child were being undertaken in something of a vacuum. Her mother was unlikely to cooperate with a move and simply happily hand over Molly with her belongings, and yet as far as I could understand it there was no clear contingency plan for how that eventuality would be handled, no support actually in place to help the father achieve the move, as no agency was willing to commit until the order had been made and the Guardian didn’t see it as something he could or should assist with – and so how could there really be an assessment of the impact of a move if it went badly, or was protracted or frightening – or botched? I couldn’t understand how suggestions about providing a storyboard and ensuring the child had access to her belongings could be relied upon to mitigate the impact, when the mother was not there to confirm her willingness to cooperate in providing photographs or belongings.

I could see there were practical difficulties in planning and enforcing a cross-border transfer of residence, but what I could not understand was how a Guardian was recommending a move that he was unwilling to give hands-on support to, and that left an inexperienced, unrepresented father on his own to find the address, travel to Scotland, make good judgment calls from the moment he rang the doorbell through to making applications for enforcement which had no proper contingency plan associated with it. Cafcass was closing the case and walking away apparently as ‘policy’ rather than a welfare basis (this is not fully reflected in the judgment, but was indicated in some of the submissions and evidence). I could understand that the Guardian might have legitimately reached the view that all less draconian options had been exhausted, but I could not understand the willingness to support a ‘plan’ that really involved no plan at all, nor could I understand the recommendation to conclude proceedings, resulting in a lapse in jurisdiction and judicial oversight of the move and of contact, and leaving the parents to sort matters out between themselves (possibly with the help of Scottish courts, social services or police), without even a lawyer between them to mediate – and all this in circumstances where the court and expert had previously concluded that the parents couldn’t work together and had failed to come back to court to vary or enforce when they ought to have done. It felt like a linear analysis had led to a recommendation where transfer was all that was left to try, but that there was insufficient scrutiny of the potential impact of a botched implementation (the what but not the how). Again, it’s fair to point out that I didn’t see the analysis, but I did see the position statements and they did not reassure.

To his credit, the judge clearly saw the information initially provided by the Guardian was insufficient, and attempted to plug the gaps by adjourning for a week – but having done so he was really boxed in to having to make a decision. Once again, I suspect he found himself up against the brick wall of it being unconscionable to do nothing and so he did what all parties were asking him to do. Whilst suspended residence had initially been mooted, this option was abandoned by the second day of the final hearing as the start of the Scottish school year loomed closer – Molly was due to start school not long after the hearing, and it was said a decision needed to be made about her care before then. The judge did consider this in his judgment, but concluded it was

‘likely to expose [Molly] to a protracted period of uncertainty and pressure given that mother profoundly disagrees with the order for staying contact, let alone transfer of residence which she described in the February hearing as “preposterous”’.

I have been really troubled by this case. I have asked myself continually during and since the hearing ‘What else was he supposed to do?’ and interchangeably ‘How could he have gone ahead and done that?’. I suppose the judge could have adjourned again, or tried some other way of re-engaging the mother. But the truth is, I now know from the judgments, it had all been tried – and in an adversarial system all a judge can do is to respond to the case actually presented to him. He was not going to get any more out of the Guardian than he had got but he did make a family assistance order to keep Cafcass on board. My personal view is that in the absence of robust planning and confirmed support from any agency, given that the mother’s response and thus the appropriate arrangements for contact and supervision were difficult to predict, the proceedings should have been continued at least to oversee contact progression. But no party sought that and I thought it surprising that it was not even raised as an option. The question the judge rightly asked about who would supervise the mother’s contact was never answered. The Guardian will be able to advise the parents as to the progression of contact under the FAO, but given that the mother is refusing to engage with him it is unclear how that will work – and if the Guardian feels he needs to return the matter to court there may be an interesting legal question of whether English jurisdiction has been kept alive by virtue of the FAO – I’m not sure it would be, though I’ve not researched it.

The issue of domestic abuse has troubled me, too. During the hearing it was a question in the back of my mind – had it been raised, as it often is in such cases? What was the nature of the allegations, and how had they been dealt with? It was first mentioned in the Guardian’s submissions at the end of the hearing, when the court was told that if the mother were here she would likely raise the issue, but that the expert didn’t think those matters were a sufficient reason to stop contact. It became apparent after the hearing that allegations had been raised but they had not been dealt with through a conventional fact-finding exercise. This raised alarm bells, but on careful consideration of the judgments it is possible to understand – to an extent – how that came to be the position. Firstly, allegations, whilst raised, they were not given by the mother as a reason to prevent or restrict contact, and contact was agreed by her. By November 2020 the expert had considered the mother’s allegations of the father’s abusive conduct towards her, and concluded that:

‘these two allegations do not appear to form the basis on which [mother’s] difficulties promoting the relationship between [Molly] and [her] father are based. She has not used them as justification to bar contact in the past’.

It was only after several years of bumpy litigation that the allegations of abuse had been revived or ramped up through the soliciting of information from the ex-partner – and ultimately those new matters were incapable of proper testing and thus could not be advanced. Moreover, given the timing of them, they appeared to have been makeweights deployed to act as a barrier to contact that the mother was really opposing for other reasons (I summarise but that is the gist of the judge’s conclusions). That perspective is understandable, even though there are inevitably other ways of seeing things. Although I want to think about some of those possible alternative perspectives here, to try and imagine the ‘other side of the story’, nothing I say should detract from the findings that have – and have not – been made, which stand and must be respected. But I think it is important to acknowledge that judicial findings and decisions are made by human beings, and are only as sound as the evidence and the process – and that because the system is run by and for flawed human beings, the decisions the process reaches are sometimes wrong, for all the effort and good faith that goes into making things work fairly and reliably.

There are some obvious tensions between the description of the history as alleged (which involves assaults on a series of women over a number of years, albeit no direct harm to a child or apparently in the presence of one (other than in utero) – and which the judge at one point acknowledges as really serious), and the low risk view that is ultimately taken of the move into the father’s care. Again though, the judge can only operate within the constraints of the law and the evidence – much of this was not proved – not even ultimately pursued. Mr Spooner’s conclusion that the domestic abuse was insufficient reason to deny the child a relationship with her father was unchallenged. The law requires that the case is dealt with on the basis that those matters alleged but not proved did not happen and do not contribute to the overall risk.

It appears that neither Guardian had assessed the issue of domestic abuse as relevant at any stage, even though there was limited acknowledgment by the father and no work done to address his past behaviour (an area any advocate representing the mother would have inevitably explored). What the assessment of risk appears to have boiled down to is that the proved matters (i.e. the convictions) were historic (they occurred in different relationships before the child was around), and the father has ‘grown up’ since, and even if one ignores the relationship with the mother and the next partner, there is no evidence of domestic abuse in his current relationship or in the presence of a child. Ultimately, what the court was left with was the same risk profile that had applied throughout the case, and which had never been assessed or argued as one which warranted supervision, let alone justified cessation of contact (although of course now the court was considering the child living full time within the household which arguably gives rise to different risks than mere contact, even staying contact). Whilst the longer list of allegations makes really concerning reading, it is important to remember this full list wasn’t proved – and had the judge proceeded on the basis it all had been true he would have been appealable. Even if the mother’s allegations, and those of the other partner were true, unless a victim steps up and engages with the process to prove them, the court will have no option but to give the accused party the benefit of the presumption of innocence.

The judge spent some time in his judgment setting out his consideration of the domestic abuse and the application of PD12J, demonstrating he had thought about how to apply the guidance to the messy background of this case. He correctly directs himself to consider whether he needs a risk assessment but concludes he does not. Much of the discussion in the judgment about risk and PD12J is couched in terms of the risk associated with ‘contact’. There is no explicit assessment of any different risks that might be associated with taking over full time care in the context of domestic abuse, – to me it is obvious that the child would be exposed to the same risks (whatever they might be) for longer periods, or that she might be more likely to be present when any incident might occur – but at this stage of the judgment the judge has forgotten his ‘it would be naïve to say there is no risk’, and is saying in terms there is none. I think this inconsistency is borne of him trying to somehow hold in mind the untested allegations whilst also following the binary system which requires him to treat everything as either ‘proved’ or ‘did not happen’.

The case is perhaps a reminder that the court’s ability to make safe decisions is significantly impacted by the ability or willingness of a complainant to engage in the process and to pursue their allegations – to bear and discharge the complainant’s burden in the broadest sense. I wondered in hindsight whether the way in which the judge dealt with the mother’s decision to absent herself as a discrete and relatively simple issue at the outset (she knew, she chose not to attend, I will proceed) sufficiently acknowledged the burden of lengthy litigation upon an unrepresented party who may have a genuine concern of abuse and who may simply be finding it all too much.

Gear change: I am stepping now into speculative territory, but not I think unreasonable speculation. I want to use this example of an observed hearing to challenge the way we think about and deal with cases – to challenge the way I have at times responded to this case and the way in which it has progressed.

Let’s just suppose for a moment that the mother was right – that the allegations of abusive behaviour towards her were true, that the information she had uncovered about the partner who followed her was true. That is, on any basis, a sustained pattern of abusive behaviour against multiple partners (four) over more than a decade (including serious assaults, and verbal denigration), and it suggests that, rather than the father having grown out of some youthful ‘lifestyle’, it’s pretty entrenched abusive behaviour and is unlikely to have simply evaporated. It suggests that there is an ongoing risk that, even if the current relationship has not yet involved abusive behaviour, it might develop along a similar trajectory – with all the risks that entails. Holding that possibility in mind – how safe now is the order the judge made? To put a distressed child into the mix with a new baby, a half sibling, a return to full time study…

Let’s also think about the possibility that this mother may well have been persuaded for a time (by herself or others) that her own experiences during the relationship were not a direct risk to her child in contact. The judgment records her agreement to contact, but that she had subsequently reported feeling pressurised into agreeing it (the judge clearly doesn’t accept she had been by the way, but it does appear that the plan to progress contact and adjourn the final hearing in February was agreed by the mother at the point where the Guardian was first mooting transfer of residence). Imagine that once she found out, in the summer of 2020, that a subsequent partner had apparently experienced very similar behaviour (at a time when the child was going to their home for contact it appears), she reappraised the risks and adjusted her stance – saying, ‘Actually, no – I am no longer satisfied this is okay’. Whilst I can understand the court taking the view that, forensically, the ex-partner’s allegations were not themselves capable of proof because she would not make a statement, the mother’s ongoing heightened concern about the father’s ongoing risk surely ought to inform the court’s understanding of her disengagement, as the judge first declined to hold a fact finding / to make findings and the Guardians maintained the line that the allegations were not relevant and instead began to talk about transfer of residence.

One can ask why the mother went off in search of ‘dirt’ in the summer of 2020. The judge clearly concluded that the mother did so in an attempt to find a reason to scupper contact she had already set her face against. An alternative view would be that the mother, having agreed against her better judgment to contact in the past, continued to ruminate about the risks of it, given her own experience – and ultimately felt compelled to go in search of further information in order to either reassure herself or confirm her concerns.

We know that victims of domestic abuse take time to fully appreciate the seriousness and impact of their experiences upon themselves and upon their children, and that they find it hard to raise those concerns, particularly when unrepresented. We know that they can feel coerced into agreeing things that they feel are not safe because of the threat or fear of their child being removed – even when no coercion is intended. When was the word ‘alienation’ first wielded in this case? What impact did it have on the mother’s apparent agreement to ongoing contact? We do know that talk of transfer of residence was swiftly followed by complete disengagement. On one view this is disengagement of a mother who is trying to safeguard her child but is not being heard, and is retreating in fear.

I’ve thought a lot about why this hearing was so uncomfortable to watch and so unusually hard to write up. I that there are two main reasons for my discomfort, which I’ve needed to unpick before finalising these posts:  

The first is that transfer of residence cases are just always uncomfortable to sit through. I say that as a lawyer who has actively participated in a number of them, both acting for a parent and for a child. They are always anxious decisions, where either outcome feels harsh and wrong, and pain will result. Everyone involved feels awful about it all the way through and for some time after. The court is always choosing the least worst option, never a good one.

If I read the judgment with my lawyer’s hat on, it’s reasoned, detailed and considers all the right things. It is not wrong in the terms of the existing system – but to me it highlights the limitations of the existing system, and the flaws inherent in it. If I were a lawyer in the case I would be protected by professional distance and by my focus on the task at hand in this case. We get by in these cases by telling us the system works when each lawyer does the best possible job for our client on that day. If I were the judge on the other hand, I’d reassure myself that my task is to make the fairest decision possible on the basis of the evidence the parties have put before me because that’s how the system is set up.

But here I’m not either of those. With my observer’s hat on, but with the legal knowledge I inevitably bring to that observation, I can see not only the compelling case put on behalf of a father who had struggled for years to achieve consistent contact with his daughter, but also a sort of sliding doors scenario which leaves me worried. It has created a sort of creeping, systemic existential panic the more I have thought about and attempted to draft and redraft this blog post.

So in this particular hearing, the lawyer part of this lawyer-observer was screaming out at the failure of an adversarial process to do justice to a child where one parent had dropped out – the failure to robustly explore issues of (to me) obvious relevance because the party that stood to lose most from the decision was not there to make those arguments, and had no lawyer there to do the job of exploring and challenging. I could see the points that could – that should – have been made. The challenges I might have made to the father if I were representing the mother (questions were begging to be asked even with the sketchiest of understandings of the mother’s position). Heck, the challenges I might have made on behalf of that child if I was representing her (I’d have had some interesting conversations with the Guardian, I imagine). The cross examination of the Guardian that should have taken place; the putting of allegations, the challenge to the expert; the nuanced exploration with the expert of the risks and benefits of the alternative courses of action; the best ways to mitigate the harm and distress caused by the manner of execution of the order, by the handling of contact in the months to come, by the adults in their responses to the child’s requests to see mummy… all missing. And the mother, silent through her absence – even though we know from the judgments that she is capable of representing herself forcefully and articulately.

The professionals worried about where the mother was, fearing abduction abroad (it was quickly settled she was still in Scotland). I wanted to know why she was not there? Was it because she just didn’t appreciate how serious things had got, that she had learnt she could just selectively ignore the court as she has before and go her own way, confident in the belief the court would never do something so ‘preposterous’ as taking her child? Was it because she had been raising issues that she felt were not being heard, that would inevitably be disregarded, that she had had enough, that she couldn’t bear any more? Was it because she feels entitled to run with her ‘maternal instinct’? Was it because she was paralysed with fear? Or was it because she simply determined to frustrate the court process and go her own way? A mixture of all of these, perhaps. Why was she still allowing video contact if she was so hostile to contact? Again, who knows? Although I am able to draw on my experience as an advocate in cases of this sort, ultimately all I can offer is informed pondering on this conundrum.

But the one thing that was absolutely clear was that the absence of the mother had a profound impact on the materials with which the judge was working in reaching his conclusion, even if not necessarily upon the outcome. Had the mother attended the hearing, even without representation, she would have had a fighting chance of resisting the order the judge eventually made. Whether she had asked questions herself, or whether they had been put on her behalf by a lawyer or the judge, this structurally adversarial process would have worked entirely differently by virtue of her presence. Without her, the judge had little option but to accede to the request made by those who showed up. I would not have wanted to be the judge trying to unpick it all.

So, although I have written thousands of words about this hearing, I have many, many unanswered questions. Not just about what I’ve missed and what I don’t know about the past, but also about what has happened since the judgment was delivered? Where is Molly – is she in Scotland with her mother or in England with her dad? How is she doing? How is her mother? How are the new family coping with her arrival? Is any support for the family yet in place? What will the Guardian do with the FAO? Will it be enough to support the family as they move forward?

When I stumbled upon this case I thought it was fate that had drawn me to it so soon after Dispatches had tackled transfer of residence. I didn’t know what the outcome would be when I decided I had to try and report on it; for most of the first day I felt certain the judge would refuse to make the orders, but I was wrong. I didn’t know which ‘side’ of the polarised debate on the twin topics of domestic abuse and parental alienation might emerge as stronger in the hearing or in the outcome.

What this hearing, and indeed this series of blog posts, probably highlights is that real life and real cases are messy and complicated. Labelling a case ‘an alienation case’ or ‘an abuse case’ is reductive – the search for the essence or single issue within a case is futile and misguided – there is no black and white – no perfect parent, no perfect professionals, just flawed and complex human beings and a flawed and complex process trying to help them navigate things with insufficient resources. Even where it is really hard, sitting, watching and pontificating from the sidelines is easy in comparison. But, I hope, also worthwhile.

You can find the other posts in this series here.

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Feature pic : Courtesy of Lucy Reed

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