Mother denied contact fails in appeal alleging judicial bias

family courts

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.

Photo by Vit Brunner under a Creative Commons licence 

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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2 comments

Sam - November 27, 2017 at 8:30pm

Firstly – parents are getting desperate with there children and newborns being removed,grandparents are not allowed to be partied or if paying to as a judge your told no(sometimes with a sarcastic comment I a particular case I’m referring to not inadmissible)
Secondly- the courts needs to ask themselves why parents are self representing and his the clients really being looked after. (For example when there’s a huge “error “ in for eg the “ CHILD “ Wong sex of child,wrong families and wrong children who doesn’t belong in the case! “Surly that is “in the best interest of any child and certainly the client. Why are people not trusting the legals ? Has something happened? In a report released it showed over 11,444,000 children who were only ‘care case compared to very few contact orders/SGO/kinship orders.
Thirdly- The solicitors if paid (but saying the client is legally funded,there should be serious questions asked especially when laws and especially children are injured or killed in placements weather that be adoption or fostercare. different judges/sw’s, running riots especially when lying in the family courts and judges stamping different orders. “Parents not receiving the paperwork and getting reports if lucky in court that day?
Sorry had to point a few things out as parents are desperately trying to stop adoptions from happening. Contact should be promoted at all times,it’s there duty to do that,however in some cases beyond reasonable doubt, can be proven that local authorities actually stops contact sessions and says the parents has not turned up,even though the parents have had to find a way of getting to contact for eg 30 miles away,where La putting children outside of the areas, Anyone with common sense would say that’s setting goals to high to fail. If she did have the opportunity of contact and didn’t turn up of her own excuses then ,obviously the child would suffer if happening on a regular basis,then she was a silly women.

Peter Davies - November 28, 2017 at 7:53pm

Hi John. Unusually, I don’t disagree with most of what you say but I will add a few points. This judgment sends out some strong and positive verbal messages but the unspoken message is still there. That is, most courts will allow parents like this to get away with repeatedly behaving appallingly before doing a thing about it. Furthermore, these parents are apparently free to make false allegations, that cause untold damage to the falsely accused and the children they purport to love, with complete impunity

At para 9 Mister Justice Baker actually related the words of Judge De Haas when she said:
‘The judge concluded that the mother presented as being, “emotionally unhinged, without insight, with very worrying behaviours.” That was the judge’s impression after observing the mother in court on a number of occasions, and in particular in the hearing of April 2017. Your paraphrasing is therefore quite understating of the judgment.

The point is that the mother had behaved this way repeatedly but the court did not nip her dismal behaviour in the bud. The litigation history provided is sketchy and I suspect this is because it is not a good story. Also, despite the presidents promise to shine a light on the lower courts, they are still opaque and shrouded in darkness. Little has altered in this regard.

A few weeks ago HHJ Stephen Wildblood spoke critically of the ridiculous number of hearings that frequently take place in intractable cases. Lazy judicial responses appear to be the norm rather than the exception and it is no wonder that when a judge actually gets down to dealing with the issues there are cries of “foul” because the abuser views their appalling behaviour as an entitlement that a judge had the temerity to object to having tolerated it previously. How many more cases do we need that provide still more tiresome examples of ‘flabby judicial responses’?

Protracted proceedings are great money spinners when lawyers can trouser large amounts of cash literally for just turning up. But, while courts ruminate and prevaricate, children are having their childhoods ruined and suffering emotional abuse in the process.

It really is about time that the judges stopped making the same mistakes and all concerned in the family court process actually did their jobs effectively.

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