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AL v DA [2014] EWHC 2632 (Fam)

Date:12 AUG 2014
Law Reporter
No. FD10P02038
 Neutral Citation Number: [2014] EWHC 2632 (Fam)


 Royal Courts of Justice

 Wednesday, 9th July 2014


 MR JUSTICE HOLMAN (Sitting in Public)

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 B E T W E E N :


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 Transcribed by BEVERLEY F. NUNNERY & CO. (a trading name of Opus 2 International Limited) Official Court Reporters and Audio Transcribers One Quality Court, Chancery Lane, London WC2A 1HR Tel:  020 7831 5627     Fax:  020 7831 7737 info@beverleynunnery.com

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 MISS C. PAPAZIAN  (instructed by Percy Short & Cuthbert Solicitors)  appeared on behalf of the Applicant
 THE RESPONDENT  appeared in person

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 J U D G M E N T

 Mr Justice Holman

 [1] I have heard this case throughout today in public. I now give this judgment in public. I direct that no report of this case in the media or elsewhere may name either of the parents or the child concerned, nor reveal their addresses or the school that the child attends.

 [2] This was listed as a one hour directions hearing. We have now been in court for approximately three hours.

 [3] Miss Cliona Papazian, counsel on behalf of the mother, has asked that I give “a full judgment” in explanation of the directions that I give and decline to give. I will accordingly do so. I shall not myself be making a direction that this judgment is transcribed at the expense of public funds, but I make plain to both parties that if either of them decides to obtain a transcript of it, it will, in accordance with my standard practice, be placed upon the publicly available BAILII website. I shall take care not to mention any names or addresses in this judgment.

 [4] The case concerns a boy, now aged about 11½. He is the child of these two parents, who never themselves married. His mother is French and lives in Paris. His father is English and lives in Southern England, near the coast. For the first few years of his life, the child lived with his mother. As a result of legal proceedings in France and a court order made there, he moved many years ago to live with his father. The litigation did not end in Paris, for there was further considerable litigation here in England, in spring and early summer 2011. After a hearing lasting some six days and a judgment of very considerable length, McFarlane J decided at that hearing that the boy should continue to live with his father here in Southern England, but also have very extensive periods of time with his mother in France and elsewhere.

 [5] It shines out from the judgment of McFarlane J that he felt that the continuing conflict between the parents had been, and was potentially, very damaging to their son. It might have been hoped that, following that judgment and apparently final decision, the conflict would have died down, but here we are, almost exactly three years on, and the mother has now issued a fresh application. She seeks that the son now moves from living with his father here in England and going to school in England to living with his mother in France and going to school in Paris, although obviously with lengthy periods of contact with his father.

 [6] The essential basis of that application by the mother is an assertion that that is what their son now badly wants. She produces a number of texts or emails and handwritten notes from the son to her. My attention was particularly drawn by Miss Papazian to an email dated as recently as last month, in which he said (in French):

“Hello Mummy, both interrogated me today. Not asking questions but interrogated me. They have refused that I can escape from the room and this during 20 minutes!”

 It is right that I should say that that is only the most recent of many messages with similar themes.

 [7] So the essential position of the mother is that, notwithstanding the decision and order of McFarlane J three years ago, their son now badly wishes to live with her and dislikes living with his father. She added that the reason apparently put forward by the son is that the father himself is spending significant periods of time abroad on business and so the son finds himself being cared for, not by either of his parents, but by the father’s current partner, which it is said he finds disagreeable.

 [8] There was no restriction imposed upon the mother making a further application. In any event, three years have elapsed since the last hearing, decision and order. That, of course, is a significant period of time in the life of a boy now aged 11. Further, the mother does adduce the material to which I have referred. In all those circumstances, she is clearly entitled, if she thinks it right and in the overall best interests of her son, to now make this renewed application. It was actually issued on 10 June 2014, and the solicitors for the mother obtained an appointment for today for a first directions hearing.

 [9] A considerable number of matters have been canvassed before me here today, upon which I must now rule. The first matter is whether or not a guardian should be appointed to act on behalf of the child and, if so, what organisation should supply that guardian. He had a guardian in the proceedings before McFarlane J, namely Miss Sarah Vivian of the CAFCASS High Court Team. As it happens, Miss Vivian has since then been promoted to a more managerial role and could not herself act again as guardian.

 [10] On behalf of the mother, Miss Papazian has asked that I should order, pursuant to rule 16.4 of the Family Procedure Rules 2010, that a guardian is appointed. She further submits that that guardian should be a member of the CAFCASS High Court Team.

 [11] The father, by his very clear written Position Statement for today and also by his oral submissions today, questions whether a guardian needs to be appointed at all. He suggests, rather, that, instead of appointing a guardian, it would be more helpful and appropriate for the parents jointly to instruct a suitable psychiatrist or psychologist or, he suggests, a multi-disciplinary team such as that based at Great Ormond Street Hospital or one of the firms of consultants operating in this field, to carry out an in-depth investigation into the psychological functioning of both parents and their son and make recommendations. He says that some such organisations are willing and able to discharge the formal role of guardian as well.

[12] Quite apart from questioning whether it is necessary and appropriate to appoint a guardian at all, the father resists very strongly indeed that I should appoint a guardian to be allocated from the CAFCASS High Court Team. He says that, if there is to be a guardian at all, it should be from some body other than CAFCASS. He suggests, for instance, resorting to the well known organisation NYAS. The reason why the father so strongly resists the appointment of a guardian who has anything to do with the CAFCASS High Court Team is that he was clearly very dissatisfied with the role and performance of Miss Sarah Vivian during the previous proceedings. I know that, for he made a formal complaint against her which was the subject of an investigation and report following CAFCASS complaints procedures. He has attached the resulting report and an appendix, with the summary of concerns/complaints and CAFCASS response, to his small bundle of documents for this hearing.

[13] I should say, first of all, that I am crystal clear that this child must be joined as a party and separately represented by a completely independent guardian in these proceedings. The tragedy of this case is that he was born an innocent child; and if and in so far as he may now be suffering emotional damage and harm, that is entirely referable to the long history of conflict between his parents. The father himself knows that, for he said to the mother, in an email dated 11th March 2014:

“I don’t know if you can have a long term view of [the boy’s] life, but there is a strong chance that [the boy] will end up hating both of us if he is constantly pulled in two directions ... I’m not sure it is possible for either of us to tell how [the boy] really feels because he’s under such pressure to please and has sadly become a child who would rather lie than face your overwhelming emotions.”

[14] In a conflict of that intensity, a boy of this age manifestly needs to have his own independent voice in the proceedings and for that voice to be well investigated and represented. I am crystal clear that I must, as I will, appoint a guardian in these proceedings. The next question is, therefore, whether it should be a guardian from the CAFCASS High Court Team, which is the normal body to which the High Court here in London would turn in circumstances such as this, or whether it should be a guardian, for instance, appointed by NYAS.

[15] There has been some investigation this morning into the timescales within which either the CAFCASS High Court Team or NYAS might be able to act. The result of those enquiries indicates that either of those bodies should be able to investigate and prepare a report to a similar ultimate timetable, namely by about mid to late October for a full hearing in November. The difference between them is that, as I understand it, the CAFCASS High Court Team could allocate very rapidly (probably within a day or two) and that the allocated guardian could commence some initial work at once. NYAS, on the other hand, would have, first, to obtain legal aid. That would take perhaps three weeks and although NYAS would concurrently identify the proposed individual who would act as guardian, that individual could not undertake any, or any significant, work unless and until it was known that legal aid was available.

[16] That is of some relevance, because today is Wednesday 9th July 2014 and in just over three weeks’ time, on Friday 1st August 2014, the boy moves from England to spend the month of August with his mother. Indeed, on Saturday 2nd August they are already booked to travel on holiday to India together. In practical terms, unless a guardian is identified, allocated and undertakes some work very rapidly in this case, there will simply be no opportunity at all for the allocated guardian to meet either the mother or the boy until after the return from the holidays at the very end of August or the beginning of September 2014. I perfectly understand that the mother and her legal team are very anxious, if at all possible, that an identified guardian should have at least a preliminary meeting with the boy in the remaining weeks of July so that the allocated guardian can form at least some initial impression of the wishes and feelings of the boy, the reasons for them, and the intensity of them.

[17] I have given very careful consideration to this difficult question of whether I should ask the CAFCASS High Court Team or NYAS to act in this matter and allocate a guardian. As I have said, the usual starting position in a case of this kind, proceeding here in the Royal Courts of Justice, is that this court turns to the CAFCASS High Court Team, whose very purpose is to serve this court.

[18] It would seem that very little of the complaints that the father made against Miss Vivian were actually upheld. In the summary in Appendix 1 to the report, it appears that one complaint out of 15 was upheld, and the remaining 14 were not. The one that was upheld is described in summary as “Ms. Vivian the judge”. Even the father himself was unable to tell me today exactly what was encapsulated in that particular complaint, except that he thought it had something to do with Miss Vivian making decisions here in the court room.

[19] There can, of course, be no question of Miss Vivian herself acting again as guardian. In any event, as I have said, she is no longer available; but even if she were, it would, in my view, be totally inappropriate that somebody should act as guardian against whom a party has made a formal complaint, whether that complaint was upheld or not. If the complaint was upheld, then it had substance to it. If it was not upheld, then there would be the inevitable feeling that the person concerned might feel some animus against the person making the complaint and view him at best as something of a trouble maker. The question is, however, whether that should operate so as to make it inappropriate that the CAFCASS High Court Team should act at all.

[20] I do not think that it should. The court must start from a position of having confidence not only in the competence, but in the integrity, of CAFCASS and its staff. I propose to give very clear directions (which to some extent echo a message already conveyed by the CAFCASS High Court Team) that the allocated guardian shall be identified and supervised by a lady called Lucy Titmuss, whom I am told is the senior supervisor of the whole team, senior both to Miss Vivian and indeed to Mr John Mellor, who used to run the team. I will expressly direct that the previous guardian, Sarah Vivian, must have no involvement whatsoever (including no procedural or administrative involvement) in this case, and there must be no communication whatsoever, directly or indirectly, between Sarah Vivian and the allocated guardian, nor between Sarah Vivian and Lucy Titmuss about any aspect of this case, including any procedural or administrative aspect. I hope thereby to erect as strong a Chinese wall as it is possible expressly to erect. I appreciate that the father, probably to his dying day, will lack confidence in CAFCASS or its High Court Team, but, as I have said, the court has to start from a position of confidence in the integrity of that team. I have made as clear as I possibly expressly can that there must be simply no communication whatsoever; and there is, in those circumstances, no objective basis at all to imagine that there could be any bias. My first decision, therefore, is that I shall appoint a guardian and it will be a guardian from the CAFCASS High Court Team.

[21] The next matter that the mother raised through Miss Papazian was seeking that I should today fix a date within the next three weeks

“for interim hearing on the mother’s application for permission to remove the child to France … with a time estimate of a day, to allow for cross-examination of the children’s guardian …”

[22] As elaborated by Miss Papazian in her written Position Statement and oral submissions this morning, what lies behind that is the following. The mother seeks that, between now and the end of July, that is, within the next three weeks, there is a hearing of sufficient length (and it could not conceivably be less than a day) at which the court would be asked to make a decision that, after the summer holiday spent with the mother, the boy should not in fact return to live with his father in England and go to the school at which he has been lined up to start in September, but should, rather, stay with his mother in France and go to school in Paris. The thrust of Miss Papazian’s argument is that this child is suffering so much at the moment under the regime of living with his father and the father’s partner that it is seriously damaging to his emotional and psychological wellbeing to continue that regime more than another week or two.

[23] Realistically, if a decision were made in a hurried way in the next two to three weeks that the child move on a so-called “interim” basis to live with his mother in Paris and go to school there, it is very hard indeed to see that that would be reversible at some more profound hearing after full investigation later on this autumn. Nevertheless, Miss Papazian argues, in effect, that this child has been so seriously psychologically damaged that nothing less will do than an immediate, urgent consideration by this court and an order to that effect.

[24] Herein lies the paradox of today’s hearing. The mother says that their child is being so seriously psychologically damaged that the arrangements that have prevailed now for many years and which were most recently established by the decision of McFarlane J, after a long hearing and an immensely thorough judgment, should be suddenly reversed. The father does not accept that at all and strongly disagrees.

[25] On the other hand, the father, by his Position Statement for today, says that their child is being so badly psychologically harmed by what is going on in his life at the moment that there should be, as I have already indicated, a thorough investigation and report by a psychologist or psychiatrist or, indeed, a multi-disciplinary team at somewhere such as Great Ormond Street Hospital. The mother, on the other hand, strongly disagrees with that. When I raised for consideration whether the mother would agree to some joint approach for psychiatric or psychological help, she completely declined to agree.

[26] I am simply not prepared today to fix a one day hearing in the next two to three weeks, the avowed purpose of which would be to make a sudden decision, on sparse investigation and information, changing what have been the settled arrangements for this boy now for many years. It would be completely pre-emptive of the very serious issues that apparently fall to be considered at a full hearing later on this year. Frankly, this boy, now aged 11½, needs to appreciate, as do his parents, that profound decisions of that kind in relation to any child’s life should not be made, as it were, on the hoof, but only after proper investigation and consideration. So he will know, following today, that directions have been given for a full hearing with a whole week allowed in late autumn, but meantime, to put it colloquially, he must sweat it out. For those reasons, I decline to make that particular order that Miss Papazian sought.

[27] That leads onto consideration of the cross-application by the father for some direction today for the instruction of a psychiatrist or psychologist or investigation by a multi-disciplinary team. This is opposed by the mother despite her assertion that their child is being seriously psychologically damaged.

[28] I decline to give any direction whatsoever along the lines sought by the father in his written Position Statement and again by his oral submissions today. There are essentially two reasons for that. First, there are now very clear rules and a practice direction in relation to the instruction of experts, which require a number of preparatory steps to be taken before the court considers an application to do so. None of those steps have been taken in this case. However, the much more important reason is that, precisely because I am today appointing a guardian, it would, in my view, be completely inappropriate for me to start giving directions today with regard to psychiatric or psychological examination of this child without first hearing from his own guardian on the topic.

[29] Therefore, at the same time as refusing to fix any date for some urgent hearing for interim change and also refusing today to give any directions for instruction of an expert, I will make express on the face of the order as follows:

“The court refuses today to fix any date or make any provision for any hearing to consider an interim change in the arrangements for the child. If the guardian, once sufficiently informed about the case, considers that he/she should make an application for any interim order, or for the instruction of an expert such as a psychiatrist or psychologist, or for any therapy, he/she may do so.”

[30] I wish also to stress in this judgment, as I have said now about half a dozen times today, that this boy is the child of these two parents. These are what we call private law, not public law, proceedings. So far as I am concerned, these two parents may jointly agree any therapeutic or similar course that is lawful and that they themselves think is appropriate for their child. The father asked me rhetorically what I would do if the child had a broken leg. The answer, of course, is that I would authorise, if it was resisted, that the child receive appropriate treatment to set and mend his broken leg. The father then asked me, so what would I do if the child is suffering, or may be suffering, significant psychiatric harm. That, frankly, is a more diffuse question with a more diffuse answer, because it begs the question as to the nature, extent and sources of the psychiatric harm.

[31] Further, if the child is suffering psychiatric harm, that is suffering which he has undoubtedly been experiencing for an appreciable period of time. If these parents both agree that their son is suffering psychiatric harm and is in need of psychiatric or psychological therapy, then I make crystal clear that nothing I say or do today stands in the least in the way of them jointly seeking whatever help they need and feel is appropriate for the therapy of their son. All I am declining to permit today is evidence gathering for forensic purposes of these proceedings. The mother, unfortunately, left at lunchtime, but I had already made that position crystal clear before she left, and I hope that it is very clearly understood. Nothing that I say or do today, or decline to do, in any way whatsoever prevents these adult parents from jointly seeking any therapy that they themselves agree is appropriate for their son.

[32] The next area upon which I have had to rule is as to identifying the date for final hearing. The mother has pressed for as early a date as possible, yet it is she who will be abroad with the son throughout the whole of August. Realistically, no guardian will be able to do much in this case until September. The guardian must then have a reasonable period of time in which to investigate the case to the fullest extent required. That seems to me to dictate that the earliest date for any sensible hearing will be around the middle of November. By then, it is obvious that any decision that the boy should move from living with his father and going to school here in Southern England to living with his mother and going to school in Paris would only be implemented after the end of the forthcoming winter school term. It does not seem to me, therefore, to make an enormous amount of difference in this particular case whether I select the first available date in the week of 10th November or other available dates in the weeks of 17th or 24th November.

[33] In order to give proper time to the guardian and in the hope that the case will have been prepared in an orderly way by then, I propose to fix the hearing for the week beginning Monday 24th November 2014. Miss Papazian initially suggested that three days would be sufficient. McFarlane J required six days. This directions hearing, in order to have to deal with all the points (many of them petty) that have been raised before me today, has already effectively occupied the greater part of one day. It seems to me manifest that, if this case remains contested with the current intensity, in order to have sufficient time for judicial pre-reading, the hearing of all evidence and preparation and delivery of judgment, a minimum of five clear days will be required. I will accordingly fix that.

[34] Save for one matter which is not of a directions nature, the other directions which I make today are less contentious and of a fairly conventional and self-explanatory kind, to which I need not refer in judgment.

[35] The one other matter is that the father raised, by his written Position Statement, a request that before she takes the boy to India this summer the mother should give a formal undertaking that she will return him to his father at the end of the month’s holiday with her during August.

[36] That was, again, rather robustly resisted on the mother’s behalf on the grounds that the undertaking had only very recently been requested when a holiday in India had been agreed some time ago and that there has never previously been thought to be a need for an undertaking.

[37] The father points out that India is not a party to the Hague Convention on the Civil Aspects of International Child Abduction and, further, that there is a new intensity in family relationships at the moment due to the fact that the mother has made the present application. In addition, the mother has applied today for a hearing within the next two to three weeks of an interim application for permission to keep the child for the time being in France. That has, effectively, been unsuccessful today and so the father has heightened concern as to whether she will duly return the son at the end of August.

[38] I make crystal clear that I make no adjudication whatsoever adverse to the mother. The undertaking that I propose will be expressly recorded as being entirely without prejudice to her and without prejudice to her contention that it is completely unnecessary, but it does not seem to me to be a big ask that, before the mother takes the boy on a holiday to India this summer, she supplies directly to the father, via her solicitors, and lodges with the court a short signed undertaking by her that she will promptly return the child to his father by the beginning of September. So that also will be provided for in the order.

[39] The last matter to which I wish to refer is mediation. What, surely, shines out again and again from this dreadful story and this judgment is the intensity of the conflict between these parents and the hugely damaging effect that further litigation is likely to have on their son now that he is aged 11 and will be approaching 12 by the time of final hearing. He will have intense awareness of this conflict.

[40] The modern policy and practice is to seek, so far as possible, to resolve disputes of this kind by processes such as mediation. In this particular case, it happens that there is an exemption from the new requirement of a MIAMS because the mother is not habitually resident in England and Wales. That, however, is a purely technical exemption for obvious, practical reasons. The policy and the desirability of striving to resolve these sorts of disputes by mediation or similar processes must apply just as strongly whether one parent happens to live in Paris or (to take a distant place in England) in Preston.

[41] I have been told that mediation was tried long ago in France before or during the proceedings there and was not successful. I am told that it was tried again before or during the proceedings in front of McFarlane J and it was not successful. Those do not seem to me reasons for throwing up one’s hands in despair and taking a view that there is no prospect of some mediated outcome this time. Much has changed. First of all, these parents have been through the bruising experience of the proceedings in 2011. Second, their son is now three years older. Third, I do not know what truly each of these parents thinks and believes about the wishes, feelings and needs of their son, but in the privacy of mediation or some similar process there is scope for a completely confidential privileged exchange of thoughts, and it is surely yet possible that one or other of them might show a recognition as to a child-focused way forward.

[42] I make all the directions that I do today, which are directed inevitably under our system to a final contested hearing, which at the moment has all the prospects of being a terrible one. However, my last words, although I have said this many times during the course of today, is to urge upon these parents that, before this gets out of control yet again; before they perpetuate emotional damage to their son; and before they spend enormous amounts of money which one or both of them may not really have, they bend every endeavour to see if they cannot find some way, with skilled professional help, to mediate and resolve these issues rather than head precipitately down the road to war.