Thursday, January 17, 2013

W (Children): The innocent bystander

Lord Justice McFarlane
A summary of W (Children) [2012] EWCA Civ 1788 (15 November 2012), just reported on Family Law Week.

The case concerned an appeal by a father against an order that he have no further direct contact with his two daughters, aged 9 and 7. This order was the last of some 27 that had been made in various proceedings between the parties since 2005. I will not go into details, but it is pertinent that the father had an alcohol problem and had been found to be in breach of non-molestation injunctions.

After some difficulties, the father had been having contact with the girls since 2010, but this was stopped by the mother in February 2011, after the father had attended the older child's birthday party. Prior to the party the father recorded a conversation with the girls. He then consumed a considerable amount of alcohol at the party, during the course of which he threatened the mother with the contents of the recording.

The matter returned to the court and was eventually heard in June 2012. The welfare report recommended supervised contact, but the judge found that the father was unable to show any acceptance of responsibility for anything that had gone wrong and was unlikely to change his behaviour, which would have a serious adverse impact upon the mother. She therefore made an order for no direct contact for the foreseeable future.

The father appealed. There were essentially three grounds:
1. That the judge had ignored the positive duty laid upon judges to grapple with all the options for establishing contact before concluding that no contact could be established.

2. That the judge made a number of findings of fact which were not capable of being proved to the requisite standard. And

3. That the judge was in error in rejecting the section 7 report recommendations without giving sufficient weight to the matters that the section 7 report writer was relying upon.
Giving the leading judgment in the Court of Appeal, Lord Justice McFarlane rejected all three arguments. The judge had taken the correct approach, she had been justified in making her findings and she was entitled to differ from the welfare officer's recommendation. He therefore dismissed the appeal.

Lady Justice Arden and Lord Justice Thorpe gave consenting judgments.

Of note are Lord Justice McFarlane's comments regarding the father's lack of acceptance of any responsibility. He considered that at the fact-finding hearing the judge had written a message "in neon lights" to the father that she was expecting him to demonstrate some insight into how his behaviour had contributed to the situation, before the final hearing. Unfortunately, the opposite was the case - for example, he considered his behaviour at the birthday party to be "impeccable and exemplary". Instead of acknowledging that he may be part of the problem, Lord Justice McFarlane said that the father considered himself "an innocent bystander to whom all these things have miraculously happened".

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