Evidence, Practice and Procedure: Contact, European Convention 1950, Art 8 and assessment of parents’ evidence

By David Burrows - 27 September 2013

David Burrows - Practice of Family Law: Evidence and Procedure

David BurrowsIn two very different contact disputes the Court of Appeal has recently looked at parents' appeals partly in the light of Convention for the Protection of Human Rights and Fundamental Freedoms 1950, Art 8 (right to respect for family life), though in each case for different reasons. On the father's appeal, the court's criticism in Re A (A Child) [2013] EWCA Civ 1104 was mostly of the failure of the court system over a long period of time to give due consideration to the Art 8 rights of an ‘irreproachable' father and his 13 year-old daughter. He had therefore been deprived of contact to his daughter over a long period of time, against the unjustified hostility of the mother.

 McFarlane LJ gave the lead judgement. He allowed the appeal and held as follows:

 [65] Standing back, therefore, and looking at the process from October 2011 as part of the proceedings as a whole... collectively the combined interventions of the court over this very extended period have, from a procedural perspective, failed to afford due consideration to the Art 8 rights of M and her father to a timely and effective process in circumstances where there is no overt justification for refusing contact other than the intractable and unjustified hostility of the mother. The failure that I have identified is of such a degree as to amount to an unjustified violation of M's and the father's right to respect for family life under ECHR, Art 8.

 In Re M (Children) [2013] EWCA Civ 1147 (in circumstances more commonly encountered than those of Re A) the Court of Appeal dealt with an appeal by a father (‘F') against a judge's refusal of contact with his three sons aged 7, 5 and 3. At the beginning of the appeal hearing F was granted permission to appeal on the ground that the judge ‘failed to assess properly what risks if any existed from supervised contact'.

 The judge found that the mother (‘M') had ‘escaped' the family home with the three boys in December 2011. The boys had not seen their father since. She had been the victim of significant domestic violence, some witnessed by the two older boys. F had criminal convictions which, though ‘distant in time', related mostly to violence. The psychiatric evidence was that F exhibited mixed traits ‘of dissocial and obsessional and emotionally unstable personality' disorder; but he had attended a number of courses aimed at addressing his violent behaviour. The judge took a favourable view of M's truthfulness; but felt hat F was unrealistic about his own behaviour.

 Macur LJ prefaced her findings as follows:

 [10] It is exceptionally rare for an appellate court to contemplate reversing the evaluation of an issue which depends upon primary facts. There is copious jurisprudence on the point more recently reviewed by the Supreme Court in Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911...

 For example in Piglowska v Piglowski [1999] UKHL 27; [1999] 2 FLR 763 Lord Hoffman stressed the point that ‘... the appellate court must bear in mind the advantage which the first instance judge had in seeing the parties and the other witnesses'. However, said Macur LJ, against this must be a counter-balance (though it may be a ‘counsel of perfection'): that when judges are appraising witnesses in court, they ‘should warn themselves to guard against an assessment solely by virtue of their behaviour in the witness box and to expressly indicate that they have done so' (para [12]). She accepted the judge's assessment of each parent; but ‘there must be careful scrutiny of the outcome reached. The judge's order is draconian. The prospect of the children having any relationship with their father during their minority will diminish increasingly with the passage of time' (para [13]).

The welfare of the children is paramount: ‘A child's continuing relationship with a non-residential parent is highly desirable and contact should not be denied unless the child's welfare demands it' (para [14]). Further, the court must address individually the European Convention 1950, Art 8 rights (right to respect for a family life) of M, F and each child:

 [15] ... those ‘Convention' rights are undoubtedly engaged by the prospective court order. The child's rights take priority above those of his parents (see more recently YC v United Kingdom (2012) 55 EHRR 967 at para 134).

 An order that there be no contact is ‘draconian'; and it can only be lawful in terms of Art 8(2) if it ‘is necessary in a democratic society for the protection of the right of the mother, and consequently the minor children in her care, to grow up free from harm'. To reach that conclusion, said Macur LJ:

 [24] ... the court must consider and discard all reasonable and available avenues which may otherwise promote the boys rights to respect for family life, including, if in the interests of promoting their welfare during minority, contact with their discredited father.

 In Re M the court therefore allowed F's appeal and remitted the case to the judge for rehearing.

 David Burrows, solicitor advocate, is author of Practice of Family Law: Evidence and Procedure (Jordans, 2012).

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