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Children Private Law Update – March 2019

Alex Verdan QC of 4 Paper Buildings reviews recent important judgments in private law children cases.

Alex Verdan QC, 4 Paper Buildings 

In this update I will consider the following areas:

• Cafcass guidance on parental alienation
• Termination of contact
• Presumption of natural parenthood?
• Civil restraint orders in family proceedings
• Appealing findings of fact


Cafcass guidance on parental alienation

Cafcass have released new guidance designed to help welfare officers identify and assess cases which feature parental alienation.

The guidance defines parental alienation as follows:

When a child's resistance or hostility towards one parent is not justified and is the result of psychological manipulation by the other parent.

The guidance explains how Cafcass seeks to deal with parental alienation cases, which can be summarised as follows:

• The starting point is the identification of risk of harm.

• Harm includes emotional harm to the child in the context of parental alienation.

• The welfare officer will assess whether it is safe and in the best interests of the child to have contact with one or both parents.

• In undertaking this assessment, the officer will need to take account of the risk factors, evidence based assessments, diversity issues, and the child's resilience and vulnerabilities

The guidance note can be found here.

This must be considered by all practitioners to be a positive and welcome step in raising the awareness and importance of identifying parental alienation in all cases, so that measures can be put in place to tackle this issue as soon as possible.

Termination of contact
In Re (A Child Termination of contact) [2019] EWHC 132 (Fam) the court was concerned with an appeal against a decision that R, aged 12 years old, should have no direct contact with his father, but was only permitted to send letter or cards once per month. The court also made a s.91(14) Children Act 1989 order against the father. A number of findings were made against the father, in particular that R would suffer harm by continuing the process of seeking to establish contact with his father. However, the court had also found that the mother had alienated R from his father, and as a result R suffered, or was at risk of suffering significant long term harm by reason of his mother's manipulation. The Local Authority had previously obtained a supervision order, but at the time of the making of the private law orders sought permission to withdraw their application for an extension of the supervision order.

The appeal came before Williams J, who noted that the findings the court made ran contrary to the local authority's conclusion that the threshold for public law intervention had not been met, and the court should have allowed the parties to reflect on the findings and consider what further role the authority might play in assisting R and the parties before making final orders, especially given that the psychologist's view was that there should be contact between R and his father.

The Judge had failed to undertake the necessary balancing exercise to weigh up the harm that would be caused by continuing the process of seeking to establish contact, against the risk of harm to R of there being no contact and him remaining in the sole care of the mother.

Williams J decided that the making of a final order for no direct contact was wrong, because there had not been a full exploration of all the options available to R and direct contact with his father. Accordingly, the s. 91(14) order was discharged pending further consideration as to the assessment of direct contact.

This case again raises the importance of exhausting every possible avenue before the court reaches the end of the road in re-establishing contact between a child and non-resident parent. It also highlights, on the facts of this case, that when the court makes findings of fact they may require further consideration before final orders can be made.

Presumption of natural parenthood?

In A v B and C [2018] EWHC 3834 (Fam) Keehan J was concerned with the welfare of a 16 year old young person, C.

C's parents were Nigerian nationals. C lived with her mother, and there had been no contact with C's father. In 2002, C and her mother came to live in the UK with C's maternal aunt and uncle. Contact between C and her father commenced in 2012 when C's paternity was confirmed. In 2016 C's mother died unexpectedly and C went to live with her aunt. C's aunt applied for a child arrangements order. The court made a shared care order in favour of the father and aunt. The father subsequently applied for a child arrangements order in his favour, which was opposed by C and her aunt.
Keehan J referred to the earlier authorities and the dicta of McFarlane L.J. in Re H (A Child) [2015] EWCA Civ 1284 at paragraphs [89-94], and again in Re W (A Child) [2016] EWCA Civ 793 at paragraph [71], namely that there is no assumption in favour of a natural parent or a natural family member.  Everything is determined with regard to the paramountcy of the welfare best interests of the child or children concerned.

The court ordered that it was in C's best interests to live with her father, and that she spends time with her aunt on three occasions per week, which reflected what was happening on the ground.

Keehan J's reasons for making the order were as follows [21]:

"I am satisfied that these combinations of orders will meet the welfare best interests of C.  They will enable her to live with her father and, as she wants, to build her relationship with him, but it will provide her with the very important emotional and psychological comfort that she requires from her relationship with the aunt and, through her, with the wider maternal family who are all so very, very important to C and to her future welfare."

This case highlights again that irrespective of natural parentage the court will be solely concerned with the paramountcy of welfare principle.

Civil restraint orders in family proceedings

In AEY v AL (Family Proceedings Civil Restraint Order) [2018] EWHC 3253 (Fam) the court made a civil restraint order for two years against a father. The circumstances of this case were that the family had been involved in litigation for over 5 years with the father making repeated applications that his three daughters live with him. The father's application was dismissed and he went on to make seven applications for permission to appeal the decision. The applications came before Knowles J, who found all of the applications to be totally without merit, and accordingly ordered that the decision may not be reconsidered at an oral hearing.

Knowles J went on, in light of the circumstances, to consider whether the court should make a civil restraint order of its own motion. Knowles J provides a helpful review of the authorities concerning these relatively rare order, and refers to Nowak v The Nursing and Midwifery Council [2013] EWHC 1932 (QB), which provides a useful summary of their purpose:

"58. As explained by the Court of Appeal in the leading case of Bhamjee v Fosdick [2004] 1 WLR 88, the rationale for the regime of civil restraint orders is that a litigant who makes claims or applications which have absolutely no merit harms the administration of justice by wasting the limited time and resources of the courts. Such claims and applications consume public funds and divert the courts from dealing with cases which have real merit. Litigants who repeatedly make hopeless claims or applications impose costs on others for no good purpose and usually at little or no cost to themselves. Typically, such litigants have time on their hands and no means of paying any of the costs of litigation – so they are entitled to remission of court fees and the prospect of an order for costs against them is no deterrent. In these circumstances there is a strong public interest in protecting the court system from abuse by imposing an additional restraint on their use of the court's resources.

59. It is important to note that a civil restraint order does not prohibit access to the courts. It merely requires a person who has repeatedly made wholly unmeritorious claims or applications to have any new claim or application which falls within the scope of the order reviewed by a judge at the outset to determine whether it should be permitted to proceed. The purpose of a civil restraint order is simply to protect the court's process from abuse, and not to shut out claims or applications which are properly arguable."

The court found that such an order could be made in the circumstances, notwithstanding that there was no application before the court. Knowles J referred to the court's case management power at r. 4.3(4) FPR 2010 "to make an order of its own initiative without hearing the parties or giving them the opportunity to make representations". However, the father was given the opportunity to respond in accordance with the principles in Ranbir Kumar v Secretary of State for Constitutional Affairs [2006] EWCA Civ 990.

Having considered the father's written submission, the court went on to make a civil restraint order for a period of two years.

Appealing findings of fact

In A and R (Children) [2018] EWHC 2771 (Fam) the court was concerned with an appeal by the mother against findings of fact, which included a finding that the mother had physically assaulted the father. The judge at first instance had not found a number of the mother's allegations to be made out. The mother appealed the findings on a number of bases, but principally that the Judge's approach to the fact finding was 'tainted by material irregularity', because she had failed to have regard to the guidance in Practice Direction 12J, and in particular, the impact of the domestic violence on the mother.

Baker J, in dismissing the appeal, provides a useful summary of the framework of PD 12J FPR 2010, and the appellate court's treatment of appeals against findings of fact.

36. As I observed in another appeal, Re G (Re-opening of Fact-Finding) [2017] EWHC 2626 (Fam) at para.21:

"Courts have increasingly recognised the dangers posed by domestic violence and abuse to the welfare of children. This is reflected in Practice Direction 12J headed 'Child Arrangements and Contact Order: Domestic Violence and Harm'... [P]ublic concern at the perceived failure to treat allegations of domestic violence with sufficient seriousness in family proceedings has led to a new version of the Practice Direction."

The Recorder received extensive submissions on the new version of Practice Direction 12J, although she did not expressly refer to it in her judgment. 

37. The following paragraphs of the Practice Direction is of particular relevance to this case.  First, there are the general principles set out in paras.4 to 8 inclusive.  Paragraph 4 provides:

"Domestic abuse is harmful to children, and/or puts children at risk of harm, whether they are subjected to domestic abuse, or witness one of their parents being violent or abusive to the other parent, or live in a home in which domestic abuse is perpetrated (even if the child is too young to be conscious of the behaviour). Children may suffer direct physical, psychological and/or emotional harm from living with domestic abuse, and may also suffer harm indirectly where the domestic abuse impairs the parenting capacity of either or both of their parents."

38. Paragraphs 5 and 6 of the Practice Direction set out general principles about the court's treatment and approach to this issue.  Paragraph 7 provides:

"In proceedings relating to a child arrangements order, the court presumes that the involvement of a parent in a child's life will further the child's welfare, unless there is evidence to the contrary. The court must in every case consider carefully whether the statutory presumption applies, having particular regard to any allegation or admission of harm by domestic abuse to the child or parent or any evidence indicating such harm or risk of harm."

39. Paragraph 3 of the Practice Direction contains a number of definitions of which the following are particularly important in this case:

"'domestic abuse' includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse."

"'coercive behaviour' means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim."

"'controlling behaviour' means an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour."

40. Finally, para.29 provides:

"The court should, wherever practicable, make findings of fact as to the nature and degree of any domestic abuse which is established and its effect on the child, the child's parents and any other relevant person."

Baker J went on to consider the law concerning appeals of findings:

42. "I turn next to consider the law concerning the treatment of appeals in these circumstances.  An appeal to the Family Division is a review, not a rehearing.  A court can only allow an appeal where the decision of the judge in the first instance was wrong or unjust because of some procedural or other irregularity (emphasis added).  The appellate courts have repeatedly stressed the need for caution and restraint when considering appeals both based on challenges to findings of fact made and (inaudible) conducted by the judge at first instance.  Probably, the best-known exposition of this is the oft-cited passage of the judgment of Lewison LJ in Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ 5, paras.114 to 115:

"Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them.  [The Lord Justice then identifies a number of cases and continues.]  The reasons for this approach are many. They include

i) The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed.

ii) The trial is not a dress rehearsal. It is the first and last night of the show.

iii) Duplication of the trial judge's role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case.

iv) In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping.

v) The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence).

vi) Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done."

This case emphasises the need for "caution and restraint" when appealing findings of fact.