Simply too late: father wins appeal, but no contact order affirmed
“The right decision is the wrong decision if it’s made too late.”
— Lee Iacocca
Last Thursday I wrote here of a case in which the family justice system failed to ensure that a father had contact with his child, with the result that the father gave up and withdrew his contact application. I am now going to relate another recent case in which the system failed a father.
The case is J (DV Facts), an appeal by a father against an order that he have no contact with his elder two children, and only indirect contact with his youngest child.
The background to the case was that the parties were married in 1995, and have three children, now aged 18, 16 and 11. The parties separated in September 2014, when the father left the family home.
In December 2014 the mother applied for a non-molestation order, alleging physical violence, drunken and controlling behaviour on the part of the father, including a serious and detailed allegation of marital rape. An ex parte order (i.e. without hearing the evidence of the father, who was not present) was made by the court for a period of two years, requiring the father not to communicate with the mother or the children, whether by letter, text message, social media or other means of communication.
Remarkably, no further hearing of the mother’s application took place, despite the father indicating to the court that he denied the allegations made by the mother and, instead, asserted that it was the mother who had been guilty of abusive and controlling behaviour within their relationship.
The father issued a cross application for a child arrangements order with respect to all three children, on the basis that they would reside with him. It soon became clear that all three children vehemently opposed any contact with their father. The father maintained that he was the parent who had had the closer relationship with the children, and that the children had been poisoned against him by their mother.
At this point it should have been obvious to all that the allegations of both parties should have been investigated at a fact-finding hearing as soon as possible, so that the court could determine where the truth lay, and deal with the case accordingly. Indeed, at a directions hearing in February 2015 the District Judge determined that a fact-finding hearing was “necessary”. However, the hearing never took place, essentially because His Honour Judge Allweis, the judge to whom the case was allocated, took the view that it was unnecessary, as the children’s views were sufficient to determine the case, the children’s guardian having advised that “any order made against [the children’s] wishes will be futile and it is impossible to force them into spending time or living with their father.”
The matter eventually went to a hearing in July 2016, at which the judge made no order for contact in respect of the middle child (the oldest child by then being too old for the court to make an order), and an order for indirect contact only with the youngest child.
The father appealed to the Court of Appeal, his primary ground of appeal being that no findings of fact had been made in the case. Giving the leading judgment Lord Justice McFarlane found that HHJ Allweis had fallen into error. He said:
“…I am of the clear view that in this case, given the issues as I have described them, there was an inescapable need for the underlying factual assertions made by each party to be resolved as far as that was possible. Notwithstanding the injunction proceedings which called for a full hearing in any event, it was plainly necessary for the polarised cases of each parent to be investigated before any informed determination could be made as to the children’s welfare. On the one hand, the mother’s case was one of sustained and significant domestic abuse which, she claimed, justified a wholesale refusal of contact. The father’s case was entirely to the contrary, asserting, as he did, that he had not been abusive and, instead, that his close relationship with the children had been perverted by the mother poisoning the children against him. This was, in short, an intractable contact dispute where the father was alleging that the mother had alienated the children against him.”
In the circumstances the father’s ground of appeal was made out. Accordingly, his appeal was allowed.
But sadly this was to be a Pyrrhic victory for the father. Lord Justice McFarlane found that it was simply too late for the case to be remitted back for a fact-finding hearing. By the time this had happened, the middle child would also be too old for an order to be made, and the youngest child’s views were by now effectively too entrenched for any attempt at contact to take place. Lord Justice McFarlane concluded that:
“In those circumstances, and despite having a great deal of sympathy for the position of this father, who has, as he says, simply not had his case on the facts ‘heard’ by the court, I am driven to the conclusion that it is now simply too late, and contrary to welfare interests of either of these two children, to contemplate a re-hearing.”
Further, given the strength of the children’s views, it could not be said that HHJ Allweis was wrong in coming to the same conclusion in July 2016. Accordingly, despite allowing the appeal, Lord Justice McFarlane held that the proper order was to affirm the July 2016 order, without any alteration.
Lady Justice King gave a consenting judgment.
Please note that I have significantly simplified the facts and the judgment in this case, for the sake of clarity. You can read the full judgment here.
Image by Matthew Platt via Flick under a Creative Commons licence