Last week saw publication of two new judgments relating to the child of former MP, Andrew Griffiths, and current MP, Kate Griffiths. Here we summarise what those judgments are about and what they do (or don’t) tell us about matters of principle that might affect other, more typical, cases.

For a reminder of the issues raised in the earlier judgments in the case of Griffiths v Tickle you can read this post (and further links in Roundup here). In short, in December 2021 the Court of Appeal dismissed the father’s appeal against an order of Mrs Justice Lieven agreeing to publication of the fact finding judgment in which HHJ Williscroft had found Mr Griffiths to have domestically abused and raped his wife. As a result of the failure of the appeal, the original fact finding judgment; the judgment of Mrs Justice Lieven approving its publication; and the Court of Appeal judgment setting out why Mrs Justice Lieven was right and the appeal should fail – were all published.

This time the mother was appealing the decision of HHJ Williscroft, made some six months or so after the fact finding hearing at a short Dispute Resolution Appointment, for supervised contact to take place at a contact centre and for the mother to pay toward the costs of supervision. The mother challenged both the making of the contact order and the part relating to costs, saying that in light of the findings the contact order breached Practice Direction 12J and that the decision on payment was wrong in principle. On this appeal, the judge was Mrs Justice Arbuthnot.

The first judgment – the contact appeal itself

You can read the judgment here : Griffiths v Griffiths (Guidance on Contact Costs) [2022] EWHC 113 (Fam).

Mrs Justice Arbuthnot allowed the appeal, setting aside the order for direct contact (leaving indirect contact in place), and saying the decision on contact and costs would need to be remade in light of guidance set out in the judgment and PD12J, which would require detailed consideration.

In short, the original judge had not given herself enough time to deal with this matter and had failed to properly remind herself of the findings of very serious and prolonged abuse she had made against the very clear guidance in PD12J about how to approach the question of (interim) contact after findings of domestic abuse have been made. The judgment sets out in full the relevant passages of PD12J that it was said that the judge had failed to refer to or properly follow (paras 35-40). Really, what this boils down to is a disconnect between the findings and the cautious approach mandated by PD12J – an example of a failure to follow PD12J, perhaps brought about in part by pressure of time.

The appeal judge didn’t accept the contention that the child didn’t have an established relationship with Mr Griffiths. The Cafcass guardian had been supportive of contact continuing/resuming, subject to a risk assessment by the contact centre, in part because of the fact that contact had been happening earlier on in the proceedings before findings had been made, but had been paused as a result of Covid. The appeal judge also didn’t agree that there was anything inconsistent in allowing direct contact but reducing indirect contact – the two things raised different issues.

This is what was said about the costs issue :

It is very unusual and probably unique that a victim of abuse is being asked to pay for contact costs as happened here. HH Judge Williscroft recognised how unusual it was when she said “I will, I am afraid, continue the current costs issues…I accept it is very unusual for somebody to have to contribute to the cost of somebody who has abused them in order to see their child, and note the unusual circumstances in which Mr Griffiths is now, as I understand it, without an income. But it is again a long-standing situation and because I have determined that the contact should continue I have therefore got to determine it is an expense that is appropriate” (E55 para 12).

In this exceptional situation, there is a tension between a decision that it is in the best interests of the child to see the father and a situation as there is in this case, where the unemployed father cannot afford to pay for the whole of the costs of contact in a centre and he was not paying any child maintenance to the mother. Dr Proudman describes her client as impecunious and struggling to pay for childcare. Whether that is the case or not, there is a question of principle at stake, the question of a victim funding their child’s contact with the rapist.

Paras 125-6

These are the key points that can be taken from the judgment :

• The court can use s11(7) Children Act 1989 to order a party to pay the costs of contact, where appropriate.
• There must be a very strong presumption against a victim of domestic abuse paying for the contact of their child with the abuser.
• if, wholly exceptionally, the court has to consider this, the matters a court might want to take into account could include the following:
  • the welfare checklist including the age of the child
  • The factors in PD12J 
  • The nature of the abuse proved or admitted, and the parties’ conduct that the court considers relevant
  • The impact of the abuse on the caregiver with consideration as to whether any payment would give rise to financial control
  • The extent of the relationship between the child and the abusive party
  • The nature of the section 8 order made
  • The parties’ financial resources
  • The cost of the contact
  • Whether, if the contact is in the best interests of the child, it would be able to take place without a sharing of the costs

It’s worth noting that because the judge had decided that the contact order should not have been made in the first place, the order that Mrs Griffiths should pay the costs of it fell away. This means that although the court gives the general guidance set out above, much of which is obviously applicable to the facts of this case, the general guidance is somewhat disembodied from the specifics of the case – the judge doesn’t embark on any detailed analysis of the financial part of the court’s order for contact in this case.

Mrs Justice Arbuthnot thought that the order HHJ Williscroft had made for Mrs Griffiths to pay the costs of contact of her abuser was ‘very unusual and probably unique’ and that she could not ‘envisage a situation where a court would order the victim to share the costs of contact’. (NB We have seen a range of views expressed about whether that is accurate and it doesn’t sound as if the court heard any submissions on that question). However, having expressed those views, Mrs Justice Arbuthnot also said she was ‘wary of giving guidance which was too narrow and which might not cater for an extraordinary situation’. She cautioned that ‘it is impossible to give guidance which will cater for every case that comes before the family courts which must be able to do justice to all the different situations which they encounter’.

This means that while victims of abuse may find the guidance helpful in resisting any suggestion that they should be required to pay or contribute to the costs of their abuser’s contact with their child (if contact is ordered in the first place), this judgment does not mean that this will never happen or that the court has ruled that it is wrong in principle or impermissible as a matter of law. It is unlikely that contact costs will be ordered against victims very often, but it is at least theoretically possible that in individual cases they might, if that is in the welfare interests of the child, and almost certainly only if there is no other route.

It remains to be seen whether or not, when the case is reconsidered, Mr Griffiths’ contact will be reinstated, or whether the decision will be put off until later in the case when the psychologist’s report is received, and if a contact order is made, what orders the court will make about the costs of the supervision. It seems highly unlikely that Kate Griffiths will be re-ordered to pay, but until a judge reconsiders the specific facts (including the parties’ finances), and carefully applies the guidance, it would be premature to express certainty.

The second judgment – recusal application

You can read this judgment here : Griffiths v Griffiths (Decision on Recusal) [2021] EWHC 3600 (Fam).

This judgment relates to an application made by Mr Griffiths after the mother’s appeal (above) had been heard, and when the judge was considering her judgment. The father had asked the judge to recuse herself from the case i.e. to stand down because of a perception of bias. It is very unusual for an application of this sort to be made AFTER the event – usually if a party has an objection to a particular judge dealing with a case that objection should be made clear at the start. Here, somewhat perplexingly, although the father’s application was based on the fact that he had met Mrs Justice Arbuthnot several times and was ‘friends’ with her husband, a Conservative Peer and former Chief Whip, he apparently had not recognised her until after the conclusion of the day-long appeal hearing.

The argument he made was that the judge’s husband, Lord Arbuthnot, would have had strong views about the ‘sexting scandal’ which led to Andrew Griffiths resigning in 2018, and would have communicated those to his wife, meaning that she could not now fairly deal with the case.

The judge deals carefully with the law and the reasons for not agreeing that she should recuse herself, but ultimately this argument gets pretty short shrift, not least because Mrs Justice Arbuthnot did not recall meeting Andrew Griffiths, and her husband didn’t recall him either and had to use Google to remind himself who he was. Although Andrew Griffiths had listed various social and political events at which he said had met Lord Arbuthnot, and on occasion his wife, Mrs Justice Arbuthnot was very clear in setting out the limited occasions on which she had attended the various locations and events referred to, stating that this was a clear case of what the judge calls ‘mistaken identity’.

Although the difference in the two accounts is puzzling, we do know that the reason the judge had messaged her husband before the hearing was because she didn’t have prior knowledge of the parents, but seeing reference to the fact that both were or are Conservative MPs she wanted to check whether they were known to her husband to avoid any difficulty. He made clear he had little if any recollection of Griffiths or the sexting scandal and so there appeared to be no issue – the judge had simply carried out appropriate due diligence. From this WhatsApp exchange it can be seen that even if the Arbuthnots had forgotten some encounters with the Griffiths, they had not left any lasting impression on either of them, and that the judge (as she sets out) had no recollection of knowing previously about the sexting scandal or the Griffiths. This rather breaks the links in the recusal argument. As the law makes clear, a judge can generally be trusted to make up her own mind without taking on board the opinions of her spouse, but even before one gets to that point, the argument fails: the idea that Lord Arbuthnot ‘must’ hold negative views about Andrew Griffiths was just an assumption and could not be made out, even less the further assumption that any such views were conveyed to the judge. The whole reason that she had messaged her husband in the first place was because she was drawing a blank but wanting to be careful.

The judge describes the objection to her dealing with the case as ‘tenuous’, and concludes that Mr Griffiths had ‘said nothing which would lead me to conclude that this is a case where I should recuse myself. I do not consider that that an informed person, having considered the facts, would conclude that there was a real possibility that I was biased’. The fact that Lord Arbuthnot’s response to his wife’s enquiry was to google Andrew Griffiths really says it all.

Had the judge agreed to recuse herself at this late stage, the whole appeal would have presumably have had to be heard again, with additional stress and cost to the mother. As it was, it appears that the consideration of the application, and a 21 day moratorium to allow for any challenge against the refusal to recuse was the reason for the delay in finalisation of the contact decision and the publication of that judgment.

You can also read two useful tweet thread about the judgments here :

Firstly, the contact one :

In another part of the Griffiths family court case, here is a judgment on an appeal by Kate Griffiths that I attended, where she challenged whether a domestic abuse and rape survivor should be ordered to share the costs of supervised contact. Short version: she won. https://t.co/oCVA8tKAi2

— Louise Tickle (@louisetickle) January 21, 2022

And secondly the recusal one :

Okay, end of the day, let's take a look at this judgment in the Griffiths case where Andrew Griffiths got in touch with Mrs Justice Arbuthnot after the hearing, asking her to recuse herself – judgment below. https://t.co/zGxLtui6XI

— Louise Tickle (@louisetickle) January 21, 2022