J (a child), Re

HHJ HALE:

1. This is a private law application under Section 8 of the Children Act 1989. The applicant, Father, seeks a child arrangements order for him to have direct face-to-face parenting time with his daughter J.

2. The respondent to this application is J’s mother. She opposes the application. J will be 16 years of age in nine months’ time. She is currently represented through a Rule 16.4 Guardian appointed by my colleague Her Honour Judge Pemberton.

3. In the position statement, which has been filed by solicitor, Ms Bowman, on behalf of the Guardian, Mr Phillips, tells me that J presents as a bright and thoughtful young person, who during their interview demonstrated an understanding of the issues and that she was able to consider the options and to provide clear instructions. To use family lawyer’s shorthand, J is Gillick competent to instruct a solicitor if it were the case that her views differed materially from those of the Guardian, Mr Phillips.

4. It is a relevant consideration for this Court, that J has an autistic spectrum condition, that she has had involvement with CAMHS, that she has previously made attempts on her own life, and that she is currently having therapy with regard to her emotional and mental health. That is a position which is fully accepted by the father, although he has his own views as to what has been the root cause of the problems

5. The father’s application was issued on 3 January this year. It is the father’s second such application, an earlier one issued was last year out of the Liverpool Family Court, and then subsequently transferred to Sheffield. It was dismissed earlier this year by a Deputy District Judge, a decision which followed the safeguarding assessment and recommendation from Cafcass that the father’s application was premature.

6. My understanding of the matter is that at that stage, the Crown Prosecution Service, and the police were considering an allegation that J had made against her father, accusing him of indecently assaulting her when she was younger. The father was still on police bail and whilst the issue was pending, it was thought that the application should go no further, and the Deputy District Judge dismissed it. In my opinion a better course might have been to have adjourned it generally.

7. In any event this application had now been made to renew the father’s case and the father tells me that that he issued the application as soon as he became aware that the C.P.S had decided to take no further action on the matter. The respondent mother remains opposed the father’s application to have time with J. She alleges that during their relationship, she was the victim of emotional and psychological or sexual abuse by the father. She also says that she was the victim of coercive and controlling behaviour.

8. As I have said already, J herself has made an allegation against her father of an incident of sexual assault when she was 10 years of age. Those allegations, and allegations they remain at this stage, engage Practise Direction 12J.

9. The Police force for the area where the alleged incidents are said to have occurred, investigated J’s allegations and the father was arrested and interviewed and an ABE interview was conducted with J. in due course the Crown Prosecution Service decided to take no further action, not being satisfied that there was a reasonable prospect of conviction before a jury. The mother exercised her right to request a review of that decision, but the decision was upheld.

10. This Court is mindful that, unlike in criminal courts where the prosecution is required to make a jury sure of guilt, the applicable standard of proof in the family court is the balance of probabilities. The judge need only be satisfied that allegations are proved on the simple balance of probability, and that is regardless of how serious the allegations are, and how far-reaching and profound the consequences of the finding might be.

11. The father’s position, however, is that the allegations made against him by the mother and by his daughter are untrue, and that the mother has engaged in behaviour which is intended to undermine and obstruct his relationship with J. He very strongly believes that the mother’s allegations of abuse by him have been given more mileage and emphasis than they should have, and that his voice has not been heard, insofar as his denials and his allegations of alienating behaviour are concerned.

12. That position embodies the very challenging issues that family courts face and which have attracted a significant amount of concern and press interest in recent times. Even today, the news comes that enquiries and reports have found that the courts sometimes appear to be insufficiently sensitive and sympathetic to allegations of abuse and can be too willing to give alleged or even proven abusers the benefit of the doubt, in allowing them to continue to have face to face in-person interaction with their children. That is the nature of the debate that we are facing at the moment.

13. J met with the Guardian and her solicitor for the Guardian independently. The position statement that I have already referred to sets out J’s position and the Guardian’s recommendation. Mr Phillips is a Cafcass officer and Guardian of some considerable experience, and his recommendations would not have been reached lightly.

14. The position statement expresses strong and consistent opposition on the part of J to having any form of contact with her father, and therefore, Mr Phillips recommends that the father’s application is dismissed and that there are no further proceedings.

15. I am invited to give very significant and indeed determinative weight to J’s wishes and feelings. Furthermore, Mr Phillips’ firm opinion is that continuation of these proceedings, let alone the imposition of a child arrangements order that the child does not want, would be positively detrimental to J’s mental health and emotional wellbeing, given her current vulnerability

16. The Guardian’s view is that a further adjournment for a fact-finding hearing, with the potential at least for J to give evidence, cannot be justified. Ms Bowman has addressed me very eloquently on the basis that even if the Court thought that it were justifiable to continue with a further analysis, and even if conclusions could be reached on what has happened in this case, it is difficult to see “ where would that take the Court?” particularly where we would have a child, probably at the age of 16, or very close to it, who has indicated that she firmly believes that the allegations that she has made are correct and true, that she is not being listened to, and that whatever the Court orders, she will simply not comply with it. The Guardian’s statement concludes with the assertion that it is in J’s best interests for these proceedings to conclude as soon as possible.

17. I asked The father for his view on these proceedings and where they would go. He feels that it is his right to have the allegations made against him considered and dismissed, and for his allegations of alienating behaviour to be considered and proved. Thus, he says, he would be in a position later in life, when he believes J will be more sympathetic to hearing his side of the story, to be able to say that the Court has investigated these matters and effectively acquitted him of any blame.

18. I also asked him to if he thinks that J would change her position and agree to see him and I asked him what he thinks the purpose would be in making an order if she were not minded to comply with it? Whilst he accepts that, as being her current he hopes and expects that in a few years’ time she may change her mind. The question for me remains what the effect of making an order would be.

19. It does seem to me that if in time she reflects upon matters and becomes more curious as to why she is in the situation she is, she may decide to have that relationship with her father, whether the Court makes an order or not.

20. Under section 1 of the Children Act 1989, whenever the Court determines any question with regard to the welfare and upbringing of a child, the Court’s paramount consideration must be the child’s welfare. Moreover, the Court must have regard to the relevant welfare checklist factors which are set out in subsection three of section one of the Act.

21. In this case, I observe and record that, J’s wishes and feelings are such that she is clearly and strongly opposed to contact. I must have regard to her psychological, emotional and physical needs and the risk of any harm to her. Her emotional and psychological welfare is, on the face of it, at risk from continuation of these proceedings and from the imposition of an order against her wishes.

22. As far as risks of harm are concerned, even putting aside the allegations and cross-allegations that parents have made against each other, a risk of harm is clearly established on the balance of probabilities, quite apart from those as yet unproven allegations. A very pertinent consideration for me must be the fact that J is vulnerable and has a history of emotional disturbance and has resorted to self-harming behaviour, which is often indicative of underlying trauma.

23. It is debatable whether a decision to summarily dismiss a parent’s application at this stage without a contested hearing of live evidence and without the conducting of a fact-finding investigation is a decision with respect to a child’s upbringing where subsection one applies, or whether it is by nature a case management decision where the Court is primarily guided by the overriding objective to deal with cases fairly and proportionately and where the child’s welfare is not the paramount consideration. I have reflected on that issue, and I have reached the conclusion that if there is a distinction as to the approach to be taken, it is a very subtle one.

24. Whichever way I look at the analysis, the exceptional circumstances of this case still require me to place significant weight on J’s clear wishes and feelings and on the likely harmful effect on her of continuing these proceedings. Either way, whether it is a case management decision or whether it is more of a welfare decision, ultimately the conclusion is the same, whichever analysis and whichever approach the Court takes.

25. I undoubtedly have case management powers to bring proceedings to an end without a contested hearing and without evidence, but I agree with Ms Bowman that the power should be exercised carefully and only where the Court is satisfied that it has sufficient material at this stage to reach a fair and reasonable conclusion as to the child’s welfare.

26. I also have regard to the Article 6, rights to a fair hearing. Those rights are rights of the mother, of the father and of the child herself. It seems to me that those rights were quite properly respected by Her Honour Judge Pemberton at the last hearing when she was not prepared to bring an end to the father’s application at that point without further examination of the child’s wishes and feelings.

27. Furthermore, as far as the father’s rights are concerned, I have given the father an opportunity to put his case to me. He has filed a position statement setting out his position, and he has very poignantly and eloquently expressed his concerns about J’s welfare and the reasons we are in the position we are today. He would, whatever the outcome of this case is, want it to be clearly acknowledged that he acts in what he sees to be the best interest of his daughter. He loves her more than anything else in the world. He wants her to be happy, and he wants more than anything else to have the opportunity of maintaining a relationship with her. He is open, I have no doubt, to her approaching him at any time in the future to rekindle their relationship.

28. To some outside observers, it might sound like an admission of defeat for the Court to say that we are where we are without the Court undertaking an examination of whether the father is an abuser and whether the mother and daughter are survivors of abuse or whether there is an element of conscious or unconscious alienating behaviour on the part of the mother and the father is being unjustifiably demonised. There will be no finding of fact in this case. There will be no prosecution of the father. There will therefore be no opportunity to have those matters investigated, and no findings are being made either today or at any foreseeable date in the future.

29. Nevertheless, I cannot ignore the reality of the situation that faces me and that includes the fact that a young person, soon to attain the age of 16, able “to vote with her feet”, has said in emphatic terms that she would not comply with any requirement for her to have any form of contact with her father.

30. My assessment of this case is that there really is no realistic prospect of this Court making the order that the father seeks. It would essentially be unenforceable and therefore largely pointless.

31. Moreover, there is, as I have said, very strong evidence that the continuation of these proceedings in themselves will be harmful to J. As always, the task facing the Court involves a balancing exercise.

32. After careful consideration, I have come to the conclusion that the likely harm to J of allowing the father’s application to continue with the inevitable delay and with the inevitable further involvement of the child with a solicitor’s guardian, all those factors create a risk of harm which outweighs the possible harm to the child of her relationship with the father being at risk of diminishing and withering away.

33. Moreover, I am satisfied that it would be a disproportionate use of the Court’s resources and of public funds to allow these proceedings to progress any further.

34. In all the circumstances, I feel bound to accept the Guardian’s recommendation and accordingly, the father’s application must be dismissed. End of Judgment. Transcript of a recording by Acolad UK Ltd 291-299 Borough High Street, London SE1 1JG Tel: 020 7269 0370 [email protected] Acolad UK Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof