PART 2 : THE CASE

This is the second part of a four part blog series. Part 1 is here, and links to parts 3 and 4.

A 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 going to refer to the child using female pronouns (she /her, daughter etc) and I’m going to call the child Molly (not the child’s name).

The hearing

This was a final hearing of lengthy private law proceedings about a 4 year old whose parents had separated when she was very little and who had been involved in this court case about Molly for most of her life. I observed the whole hearing, which spanned two days in August 2021, separated by a week. The judgment itself was delivered a week or so later.

At my request, I was provided with the father’s position statement and subsequently with two position statements prepared on behalf of the Cafcass Guardian for the final hearing, and the judgment delivered by the same judge in February 2021, as well as the judgment delivered at the conclusion of the hearing. The same judge, HHJ Whybrow, has dealt with most but not all hearings in the case, which has been running since 2017. I don’t have access to the full bundle of papers (such as the full expert report, Guardian’s report or the parents’ statements), so what I write is based on those documents I’ve read (which the judge has permitted me to quote from as long as anonymity is maintained), and what I saw and heard at the hearing.

One thing I have thought a lot about in writing these posts is how many gaps remain in my understanding of the case, even though I sat through two days of the final hearing. This sense of only having half of the picture was more pronounced than in other cases I’ve observed because the mother was absent from the hearing, which meant that the evidence was not tested and issues explored as they usually would be. Readers should hold in mind that, even though I have done my best to write a balanced summary of the case, and to highlight where there is missing information, what I have written cannot be a fully rounded picture – because there will be ‘unknown unknowns’ that I can’t flag as gaps.

I won’t set out every detail of the judgments, because you can read them when they are published on BAILLI. Instead, I’m going to pull out what I think is important and add some explanation of points that might not be obvious from the judgments alone.

The background

This post explains the background to the case (insofar as I can unpick it) and what happened at the hearing. In part 4 of this series I’ll set out my own personal thoughts on what I saw.

Molly’s parents separated shortly after she was born in 2017. Molly and her mother moved to Scotland shortly afterwards. In December 2017, after Molly’s mother took her abroad to a country outside Europe without her father’s agreement, the father brought a court application in England. Molly’s mother didn’t bring her back for several months. The court in England continued dealing with matters because at the time the case started Molly was ‘habitually resident’ in England, even though she is now habitually resident in Scotland, having had her home there for several years. The court proceedings have been ongoing ever since, but concluded with the making of an order at the end of this hearing transferring residence of Molly to her father. The mother didn’t attend the final hearing and did not make contact with the court to say why, or to put forward her case. She had not engaged with the process or responded to communication from the lawyers in the case since about June.

Over the three-plus years this case has been running, there has been stop-start contact. Most of the time the contact was agreed by both parents at court, but often what was agreed had then not been stuck to by the mother – the judge concluded that sometimes there were good reasons contact didn’t happen (Covid, travel logistics etc – the journey between the parents homes is many hours), but often there weren’t.

During the proceedings, both parents have formed new relationships and each has had a baby with their new partner.

In December 2018 (about a year into the case) the court appointed a Guardian for Molly. In September 2019, at a time when agreed contact had stalled because the mother raised concerns about the child’s distress, and at the Guardian’s request, an expert psychologist, Mr Spooner, was instructed to assess the parents. Even at this stage there were questions being raised about possible alienating behaviour as a part of the explanation for the difficulties in the case, and the father’s case outline records that the expert was asked to consider ‘amongst other things, the issue of parental alienation given M’s implacable hostility to contact’. There are several published judgments referencing Mr Spooner on Bailii, including this one, which records the exploration in cross examination of his views regarding parental alienation.

Following the instruction of Mr Spooner, in early 2020 the parties had agreed a comprehensive plan for progressing contact and by all accounts things were looking positive. It is difficult to know what part Mr Spooner’s recommendations had played in those developments, as I haven’t seen his first report. Unfortunately the first Covid lockdown meant that the agreement could not be implemented as planned. As the Covid restrictions eased in summer 2020 it had been intended that the plan agreed earlier in the year would be implemented – but it was at that stage that domestic abuse issues appeared.

Domestic abuse

It had been known throughout proceedings that the father had two quite serious convictions for domestic abuse against other partners when a young adult (before Molly was born), and the mother had made some allegations of domestic abuse during their relationship (the judge refers to mutually ‘deeply critical’ and ‘verbally abusive’ messages exchanged by the parents at the time of their breakup), but nobody – including the mother – had suggested these matters were reasons for preventing contact or requiring supervision. Rather, according to the judgment, the mother’s criticisms had been around the father’s perceived lack of commitment, lack of child maintenance, lack of interest and lack of communication along with his tendency to be ‘temperamental’ and ‘disrespectful’). At times contact had taken place unsupervised and overnight with the mother’s agreement, albeit not consistently.

It appears that it was only in the summer of 2020 (so, approaching three years into proceedings) that the mother raised allegations of domestic abuse as reasons to prevent contact going ahead. The mother contacted a woman who had been the father’s partner during Molly’s infancy (not his current partner), and produced text messages from her that suggested that she had been the victim of domestic abuse (but which indicated his behaviour towards Molly had not been of concern). Based on this new information, taken with the existing convictions and allegations, the mother said there was evidence of a prolonged pattern of abusive behaviour and a risk to Molly. Contact should be supervised because of a risk Molly would be exposed to domestic abuse towards a partner or herself be subject to aggressive behaviour.

Given the history of the case and the mother’s attitude to contact and court orders, the previous agreements and the timing of the allegations, the judge ultimately concluded at the hearing I observed that this action by the mother in seeking out the other woman and presenting her messages, had been ‘motivated by an intention to scupper contact’. It is worth noting that in the autumn of 2020, shortly after raising these new issues, the mother once again took the abroad child to the same non-European country, again without the father’s agreement or court approval. This further delayed the implementation of the plan (which of course by this time she said was not safe or appropriate, but which was still an order of the court). She did not return Molly to the UK for several months, citing difficulties getting a flight home during the pandemic, but without any evidence.

Before reaching any conclusion on the validity or motivation behind the allegations however, the judge had directed schedules of allegations to be lodged, and the resulting allegations of domestic abuse by the father towards various partners are contained in the recent judgment in chronological order. Insofar as they relate to the mother, the listed allegations include one complaint of a physical assault of the father by the mother (during her pregnancy), but are otherwise limited to verbal abuse, physical aggression and control. It’s not clear to me whether these complaints were new to the court in 2020, or not. On one reading of the judgment the complaints until that point had been limited to verbal abuse in the messages exchanged around the time of separation. The full list of allegations made in respect of the father’s behaviour towards the mother, and towards the father’s previous and subsequent partners are a troubling read but, of course, some were allegations rather than proven facts. The judge summarises them as follows:

“The overall picture, compounded by the allegations from [the ex partner], are very concerning. They led to suspension of direct contact and an investigation last year. There is a pattern suggested of temperamental behaviour including emotional abuse and physical violence. Plainly the conviction from 2008, when he was 19, was very serious indeed. The overall picture is also suggestive of ongoing turbulence in his relationships with women between 2013 and 2019.”

However, although the court responded to the new information from the ex partner in 2020, that woman was not prepared to give evidence. Given the difficulty proving those new matters, the judge didn’t think a separate fact finding hearing was necessary but was prepared to consider matters in the round at the final hearing – however at the original final hearing in February matters were agreed, and at this further final hearing the mother did not attend, and so did not pursue her allegations. It’s worth noting that the mother appears to have been a litigant in person throughout much of the proceedings (I don’t know if that was through choice). The father has mostly been represented. His barrister at this hearing was a junior barrister representing him through ‘direct access’ (without a solicitor).

At the hearing I attended there was very little reference to domestic abuse – I only picked up tangentially that it had been raised at all, and until I had sight of the February judgment really struggled to understand the history of it. Because the Guardian didn’t think the allegations were material and the mother wasn’t present, nobody cross examined the father on the specific allegations of abuse. The father was asked some rather euphemistic questions by the judge about whether he thought he had changed or matured since the end of that relationship, when he was (the judge suggested) perhaps living (in) a ‘much more youthful – irresponsible way’?, and that there was perhaps a time when he was ‘drug taking, partying and involved in different relationships – unstable compared to now?’. The father assured the court he had changed and matured, but there was certainly no acknowledgment of abusive behaviour in the evidence I heard, and the judgment records that the father continues to deny most of the specific allegations. He was asked about the apology he had given to the mother following the encouragement to do so by the judge in February, but I was not able to pick up from his answer what he had really apologised for. His answers were vague and general and the apology appeared to be about how he had handled the end of the relationship rather than any abuse. The wording of the apology itself didn’t seem to be before the court, but it is unsurprising it did not lead to a rapprochement.

At the hearing in February the judge had been persuaded to adjourn to facilitate an addendum report from Mr Spooner to look at the issue of transfer of residence, and at that stage he explicitly requested that Cafcass should explore the father’s current relationship prior to the adjourned final hearing, partly around issues of potentially abusive behaviour – very little seemed to be known about the current partner or the relationship. For reasons which are unclear, that had not been done by the time of this hearing, leaving a gap in the information available. The judge adjourned the hearing for a week, in part to allow this to be dealt with, and by the time the case came back the Guardian had spoken to the partner alone, and offered reassurance to the court that the relationship was healthy and the partner willing to support the move.

The judgment makes some limited and quite general findings about the father’s past behaviour and capacity for intimidating and abusive behaviour, but broadly speaking did not go beyond that which the father accepted or had been convicted of. The judge said it would be ‘naïve’ to say there was no risk of domestically abusive behaviour in the future, but on the evidence before the court did not consider that was a high enough risk to prevent unsupervised contact or to prevent him becoming the parent with care (although elsewhere in the judgment he says there is no risk to mother or child ‘at this time’ from contact). The judge refers to the relevant guidance about domestic abuse in his judgment and considers the safety of contact. He broadly takes the view that the direction of travel that had been repeatedly agreed by all parties i.e. to move towards Molly having a relationship with both parents as being safe and in her best interests remains the goal, in spite of allegations arising in the middle of the process. 

Child’s relationship with father (and partner)

Although it has been intermittent, the contact that has taken place between Molly and her father appears to have been positive. Whilst the mother complained that for a period initially the father was inconsistent with attending video contact, and did not always engage fully, it was reported that she accepted that this had improved. One of the oddities about this case was that although the mother was basically ignoring the court process by the time I observed a final hearing, and was not facilitating the direct contact the court had ordered, she was supporting (to a degree) regular video contact, which was still happening and going well, although the court was told she had a tendency to cut the calls short. That said, it appeared that whilst Molly is familiar with her father, and engages well with him when she has contact, she did not have much experience of being in his sole care or of being away from her mother for long periods. She had met the father’s current partner very infrequently, possibly only once in person as far as I could work out, so she was not a familiar care giver either.

Gathering information about the father’s current partner was important partly because of the allegations of domestic abuse, but also because in the course of the hearing it became apparent that the father was about to start a full time course of study at university, and whilst he hoped to change jobs, was also currently working weekends. This means presumably that his partner, who does not know the child well at all, will be expected to take on a good deal of the responsibility for her care. This was not explored in any detail in the hearing, and although it appeared to be new information the Guardian did not comment on it in his evidence.

Parental alienation

As mentioned, at a ‘final hearing’ in February 2020 a contact plan was able to be agreed by the parents. However, due to Covid and then the domestic abuse allegations and then the trip abroad, the plan had really not got off the ground. At the attempted final hearing in February 2021 the court heard evidence from the parents and Guardian. Given the situation, the Guardian persuaded the judge to adjourn for an addendum report from Mr Spooner because she was considering whether a change of residence was necessary to secure reliable and consistent contact with both parents but did not wish to make such a recommendation without expert help on whether the transfer was in the child’s best interests and how it should best be achieved. As far as I can tell Mr Spooner has not been required to give oral evidence at any stage in this case.

In preparing his reports, it appears that Mr Spooner interviewed the parents but did not meet the child, on the basis that this was not felt by him to be necessary. I don’t have Mr Spooner’s report and he did not attend to give evidence, but there are some extracts of his most recent report in the judgments that give a partial picture of his advice to the court.

Mr Spooner reported that

‘neither I nor the Guardian had any significant concerns about [father] presenting a risk to [Molly] and that there was no reason [she] should not have a relationship with [her] father. His Honour Judge Whybrow made an order for significant contact at that hearing on 4 March 2020. No direct contact has taken place since March 2020

….This means that the option of a transfer of residence to father has to be on the Judicial table for consideration, because [Molly’s] welfare demands that [she] has to be protected from harm by being placed with the parent who is the most capable of meeting [her] welfare needs. This case to me appears to be one of Judicial/professional over-patience, because Court orders are not discretionary and so far [mother] has chosen to pay scant attention to what has been ordered of her. The longer this continues the greater the risk to this child. If [mother] is unable or unwilling to sort this out immediately and permanently then removal of [Molly] from her care will continue to ascend in priority up the list of welfare options that are available in my opinion’

Mr Spooner set out the risk of longer term emotional harm to Molly as a result of the ‘pathological dynamics’ between her parents, predicting that

‘[she] will become increasingly aware of these pathological dynamics in [her] parents’ relationship and [she] will therefore come to learn exactly how [her] parents feel about one another. This will affect [her] and (a) it will make psychological crossings between [her] parents increasingly fraught and (b) increase the likelihood that [she] will experience significant emotional discomfiture as a result of conflicted loyalty.”

Mr Spooner suggested that Molly would suffer ‘considerable distress in the short term’ if her residence were changed to her father. In the long term he predicted she would be ‘at risk of significant emotional harm and rejecting [her] father’ if she remained in the care of her mother and continued to have her relationship with her father undermined.

He went on to set out his experience of transfers of residence in over 40 cases where in each case he says the children ‘tolerated…[the transfer] or even thrived’ as a result.

During the course of the hearing there were some infrequent references to ‘alienation’ in the context of Mr Spooner’s recommendations. Mr Spooner’s report appears to relate not to any actual current rejection by Molly (although her contact was not being consistently supported by her mother), but to the risk that in due course she would come to reject her father as a result of the pressure upon her, the conflict between her parents and, to an extent, her mother’s behaviour. It is worth noting that in February 2021 the judge raised a concern that there might be a risk of denigration of the other parent or negative signals (verbal or non verbal) in either household.

As I read those parts of Mr Spooner’s addendum report that are quoted by the judge, he was not so much specifically recommending a transfer of residence as indicating it was something the court should think seriously about if matters did not improve, quite properly leaving the ultimate decision to the court. By the time of the hearing of course, matters had regressed further, in that the mother was disengaging with proceedings and not facilitating any direct contact at all. 

At the end of April 2021, a new Guardian was appointed. He gave brief evidence at the final hearing. He adopted Mr Spooner’s recommendation and in his final analysis had invited the judge to make a transfer of residence order based on that expert evidence.

And so it was that by the time of the final hearing I attended in August 2021, the Guardian and father both sought a transfer of residence of Molly from her mother’s care in Scotland to her father’s care in England, relying upon the expert evidence of Mr Spooner. The mother simply didn’t show up, having effectively withdrawn from communication about the case from June 2021. Therefore, at the hearing I observed, even though it was known the mother did not agree to Molly going to live with her father (she had described it as ‘preposterous’ in February when the idea was apparently first raised by the Guardian), there was nobody at court raising any objection to the orders proposed.

The hearing itself

The judge first made some enquiries about what was known about the mother’s non-attendance, but having satisfied himself that she was aware of the hearing but had chosen not to attend, having stopped engaging with the court or lawyers in around June, and given the delay in the case already, he decided to go ahead. He heard some relatively brief evidence from the father and then the Guardian, and heard submissions (speeches) from the lawyers. The lawyers asked very few questions of the witnesses because there was agreement between those present about the way forward, and in fact the judge himself asked the most questions. There are limits to how far a judge can go in probing and challenging evidence but it was clear that he was uncomfortable about making a decision of this gravity without the mother there to present her arguments, and without being sure that he had all the information he needed about the impact on the child. He asked a lot of questions about the practicalities of things – finances, work, sleeping arrangements, how would the transfer take place, what support was in place, what were the plans for schooling and contact, how did the father think that she would adjust etc etc.

I’ve addressed the evidence of the father above. There was limited challenge of the father, and the mother’s allegations were not specifically put to him for his response. Exploration of the father’s changed lifestyle appeared to unearth new information about future care arrangements (see below), which had presumably not been known by the Guardian when making his recommendation. It is clear that the judge formed a reasonably favourable impression of the father who, as noted in the judgment, did not show any hostility to the mother and stated  that he didn’t think it would be right to try and enforce orders by fining the mother because that would make her situation difficult. He talked warmly and positively about how recent video contact had been going.

The Guardian had taken on the case since the February hearing. He was a youngish man who regularly deferred to management or to Cafcass policy, relied upon the expert’s recommendation (which he appeared to have taken as a firm recommendation of a change of residence), and acknowledged he had no experience of transfer of residence cases. I did not have access to his report but have read his two position statements, and based on those and the questions posed by the judge it does not appear that the Guardian had set out a detailed action /transition or contingency plan, and he did not see it as his role to be involved in facilitating the transfer or transition. He said that a Family Assistance Order would be contrary to Cafcass policy in a long running case. He expressed confidence that the local authority where Molly would be living would quickly allocate and send out a family support worker to provide hands-on support in the transition period. He recommended a storyboard to be shared with the child but from the hearing I could not get any real grip on who was going to take responsibility for preparing or delivering it or when (before or after transfer?). Although the father’s barrister had raised concern in her position statement about the impact on the child of an escalation of the situation if the mother refused to comply with any order, little was said in the course of the hearing about the possible impact on the child of a refusal to hand her over at the door, or a protracted handover, possibly involving police, upset and arguing. 

During their evidence, both the father and the Guardian agreed with the judge’s suggestion that the ‘win : win’ for Molly would be to remain in her mother’s care with good, regular and consistent contact to her Father. However, both the father and the Guardian expressed the view that this was not achievable given the track record, and they felt that a transfer of residence was the only way to ensure Molly had a relationship with both parents. This appeared to be supported by Mr Spooner who, whilst referred to occasionally, had not been asked to attend the hearing to give evidence, either to justify his recommendation or to assist on implementation.

At the conclusion of the first day’s hearing the judge indicated that he felt there were gaps in the evidence, and it was his intention to adjourn for a week for the Guardian to make further enquiries about what local authority support could be provided, about the father’s partner, and about the child herself, in particular her wishes and feelings. She had not been seen by Cafcass for a very long time, as best as I could make out not since late 2019 (and this Guardian had never met her). Secondly the judge wanted to give the mother a further opportunity to re-engage and to provide staying contact in Scotland as a demonstration of her commitment to contact. At this stage the father’s barrister was suggesting the court should make either a suspended or immediate transfer of residence order.

The mother did not engage or respond at all to communication sent to her and didn’t attend on the second day a week later. In light of this, when the hearing resumed the father’s position was that an immediate transfer of residence order should be made as a suspended order would only delay the inevitable and potentially increase the distress for the child.

Although he did not give further evidence on the second day of the hearing after the week’s adjournment, the Guardian had produced a position statement in which he set out the results of further enquiries with local authorities in both locations, the father’s partner and with the mother / child (the latter unsuccessful).

The judge at this stage therefore had a little more information about the father’s partner and about the willingness of the local authority to assist. They would offer transition support, parenting support, get to know Molly and support her with her wishes and feelings, and would allocate a worker within 1-2 weeks. There was little more information about how things would work on the ground in terms of getting Molly from her mother’s care to her father or how decisions would be made about the mother’s contact and when supervision could be relaxed (or even who would supervise it). This was partly because the court didn’t know how the mother would react. If she didn’t comply with the order it would be necessary for the father to register and apply to enforce the order in Scotland, which this court has no control over. Because the mother had not made Molly available, the court was no further forward on her wellbeing, presentation or expressed wishes and feelings.

The judge announced his decision at the conclusion of this part of the hearing, which was that he would approve the transfer of residence, and make a Family Assistance Order to ensure Cafcass continued to be available to support transition and contact, but reserved his judgment, meaning he would provide his written reasons in a judgment that he would deliver the following week. Again, the mother was notified and invited to attend but did not do so.

As regards the question of alienation, the judge’s conclusion was that there was ‘no evidence to find that [the mother] is actively alienating [Molly] or that she is utterly opposed to contact. She has agreed to contact in the past and has promoted it and it appears that, despite the lengthy history of problems, [Molly] has a positive relationship with [her] father. However, there are numerous instances where I have concerns about [the mother’s] behaviour, many examples where she appears to be unwilling to put her own feelings about [the father] on one side to make things easier for [Molly]’.

There is more detail about the conclusions the judge reached and the contents of his judgment in part 4.

You can read Part 1 and find links to the other posts in this series here.

Click here to read part 3>>> (how I did it)


Feature pic : Courtesy of Lucy Reed

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