Mother denied contact fails in appeal alleging judicial bias
By:2 commentsNovember 27, 2017
A mother who had her child removed from her because she failed to comply with contact orders, the corrosive effect on children of repeated applications to the court, the risks to a child posed by domestic violence, the consequences of bad behaviour in court, and a litigant making poor decisions without the guiding hand of a lawyer. There are so many lessons to be learned from the recent High Court case Re NA (A Child), which concerned a mother’s application for permission to appeal against an order denying her direct contact with her six year old daughter.
Lesson 1: Comply with court orders. When her parents separated the child initially lived with her mother. However, as mentioned above, the mother failed to comply with contact orders in respect of contact between the child and her father. Mr Justice Baker does not give details of this in his judgment, but the breaches of the orders must have been pretty serious, as care proceedings were instituted, and in April 2013 the child went to live with her father under a care order made in favour of the local authority. Whilst it is very rare for such steps to be taken (too rare, some would no doubt say), it does demonstrate what can happen if a ‘custodial’ parent fails to comply with contact orders. Those orders are made for a very good reason: that the welfare of the child will be best served if she continues to have regular contact with the ‘non-custodial’ parent.
Lesson 2: Never use violence, especially in front of children. In this case the judge in the court below made findings against the mother which, in the view of Mr Justice Baker, amounted to serious findings of domestic violence. In particular there was an incident in July 2016 when the mother went to the father’s home and was found to have assaulted the father in the presence, or at least close proximity, of the child. It may be trite to say, but domestic violence never solves anything and, as Mr Justice Baker pointed out:
“The court is under an obligation to ensure that, where violence or abuse is proven, any child arrangements order in place protects the safety and wellbeing of the child, and the parent with whom the child is living, and does not expose him or her to the risk of further harm, and that the order will in the best interests of the child.”
Here, the mother’s behaviour (including her behaviour in court, as mentioned below) was such that the judge in the court below decided to suspend the mother’s contact with the child until such time as she undergoes psychological assessment. As we will see in a moment, this decision was still preventing any contact between the mother and the child at the date of the judgment (the third of October).
Lesson 3: Don’t keep making applications to the court in relation to children. As Mr Justice Baker pointed out:
“There have been long-running proceedings in court, concerning [the child], between her parents. The judge, in her judgment of April 2017, rightly referred to the corrosive effect on children from repetitive applications to the court and long-running court proceedings.”
In order to deal with this, the judge in the court below made an order under section 91(14) of the Children Act that the mother should not be permitted to make any applications for child arrangements orders in respect of the child without the leave of the court for a period of three years, save that the mother would be permitted to make an application for a psychological assessment of herself. Making repeated applications has consequences.
Lesson 4: Behave yourself in court. It never goes well if you don’t. Here, the decision of the judge in the court below was influenced by the mother’s behaviour in court at a number of hearings, which included talking over the court (i.e. interrupting the judge), not having any regard to rulings made by the court, and using cross-examination as an opportunity to hector the witness.
Lesson 5: Alleging judicial bias is unlikely to end well. The primary basis of the mother’s appeal was that the judge in the court below was biased against her. Needless to say, Mr Justice Baker disagreed, holding that the judge was entitled to make the findings that she did, on the basis of the evidence before her (including the demeanour of the mother in court). As Mr Justice Baker said, the fact that a judge has made findings on a number of occasions against a party does not mean that he or she is prejudiced against that party. In the light of this, Mr Justice Baker found that there was no real prospect of an appellate court concluding that the judge was wrong, and accordingly permission to appeal was refused.
Lesson 6: Do what the judge suggests. As mentioned above, the judge made it quite clear that she would not allow further contact until the mother underwent a psychological assessment. Instead of wasting vital time with this hopeless appeal, the mother should have followed this suggestion, and if she had, she might already have had direct contact re-established. Which brings me to my final point:
Lesson 7: Get some good legal advice (if you can). The mother was unrepresented on the appeal, although she was represented in the court below. We don’t know whether she took any advice on the appeal, but with good advice, maybe she would have understood that the judge was not biased against her, wouldn’t have pursued the appeal, and would have followed the judge’s advice to undergo a psychological assessment. Of course, it may be that this mother could not afford to obtain such advice. Unfortunately, the last government saw fit to abolish legal aid for cases such as this, so obviously there are now many litigants who are denied the chance to obtain proper legal advice.
You can read the full report of the case here.
November 27, 2017
Categories: Family Law