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Protracted children law proceedings descend into “corrosive” shouting match

By Rebecca Ridsdale -

Protracted children law proceedings descend into “corrosive” shouting match

A protracted set of children law proceedings has been described as at one point descending into an uncivilised “shouting match”.

The High Court case A v R and Anor concerned the father (F) of a child (T) arguing that a replacement expert should be appointed. Previously a psychologist - Mr Clowry - had been asked to “report on a plan of clinical work to assist the parents with facilitating the progress of contact between the father and T”. That hearing had also resulted, against the wishes of F, T and T’s mother (M), in the judge making a final child arrangements order. The order detailed that F was to keep having the two hours per month of contact time with T that he had already been having, in addition to indirect contact.

The general chaos of the hearing ending in the final child arrangements order was one of the grounds on which F successfully appealed the decision. Mr Justice MacDonald, hearing the appeal, was critical of the way in which the case had been argued. He noted in his conclusion that “…before making a final child arrangements order, the learned Judge did not hear submissions on the key issues before the court at the final hearing of the need for a final child arrangements order and the appropriate level of contact between father and daughter if such an order were made” and that this “unfortunate situation…materially contributed to the primary reason this appeal has been successful”.

He noted that rule 12.21 Family Procedure Rules (FPR) effectively requires “submissions to be made in a clearly defined order” so that each party is able to state their case and that counsel constantly interrupting each other is “corrosive of this aim” and “to be deprecated”.

He also noted that he had sympathy for the judge hearing the case – His Honour Judge Scarratt – and was of the opinion that he had attempted to “assist the parties by attempting to cut through a protracted dispute between two parents”. The case had indeed been especially long running.

It began ten years ago when F made an application for a prohibited steps order in relation to T’s schooling – that was settled in September 2008. In 2010 there were allegations of inappropriate behaviour towards T by M’s new partner, and later by M herself – both were settled after investigations by children’s services. In late 2012 F applied for sole residence, following which M applied for residence, contact and prohibited steps orders – this was not settled until 2014 when a shared residence order was made. In 2016 an order was made reintroducing contact between T and F and affirming the shared residence order after F complained of a gap in contact. Later in 2016 F requested he be able to take T to Hungary to visit her paternal relatives, this was refused. He then applied for a greater period of time with T and for M to pay his costs.

The judge noted that during this period of prolonged disagreement, where the parents seem to have been able to agree on nothing without going through the courts, T had to bear quite a burden, evidenced in part by her having to directly engage with a number of professionals connected with the case. This included interviews with the police and social workers on multiple occasions (relating to the “cross allegations of abusive behaviour towards T by maternal and paternal family members and others”) as well as with doctors M brought in because of an alleged eating disorder in T and signs of stress.

In December 2016 F applied to have an expert child and adolescent psychiatrist assess whether T was suffering from adverse influence by M, and T’s wishes and feelings more generally. This was granted but did not go ahead because T’s children’s guardian (T by now having been joined as a party to the case) recommended mediation. That was unsuccessful, but the parties agreed to have a psychologist assess how the parents might be assisted in making progress towards F and T having more contact. Eventually, with M, F and T’s children’s guardian being invited to state their position after having read the psychologist’s report, a final hearing was scheduled for November 2017. That hearing was held first before a District Judge, before counsel constantly interrupting each other led her to request that His Honour Judge Scarratt take over. As previously mentioned, a final child arrangements order was made. F then appealed this, whilst being no longer represented and filling out the application himself.

Eventually, in March 2018, F won this appeal, on the basis that the judge “did not sufficiently consider the parties' competing arguments on the merits before proceeding on a summary basis to make a final child arrangements order”.

Such long-lasting litigation is a shame to see, especially in a matter relating to a child. T clearly held her own, strong, views on the subject. Ongoing litigation beset by failed mediation attempts, poor quality experts reports, cross-interrupting counsel and F ceasing to be represented had clearly been arduous for all parties, and perhaps damaging to T. Hopefully things will look up for the family now that this most recent decision has been reached.

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Rebecca Ridsdale

Rebecca joined Vardags as part of the Graduate Training Programme in January 2018. She began her legal practice course at BPP in September that year.