Wednesday, April 09, 2014

J-M (Child): Fair and thorough treatment

Lady Justice Black
A summary of J-M (Child) [2014] EWCA Civ 434, a father's appeal against an order that he should have no direct contact with his son.

The case concerned a 14 year-old boy named in the judgment as 'MX', who lives with his mother ('M') and has not seen his father ('F') since October 2010. The leading judgment in the Court of Appeal is given by Lady Justice Black, who sets the scene thus:
"The matter has a long history. Proceedings began when MX was just a baby and there have been a number of orders since then. Prior to 2009, there was a period of about four years when there was no contact between F and MX. In F's view, this was attributable to the malign intervention of M and her family who set out to alienate MX from him and to a conspiracy or conspiracies involving M's lawyers, his own lawyers, and a district judge."
Contact orders were made in 2009 and 2010, but contact broke down shortly after that second order, and F applied to enforce it. On the 7th of December 2012, the district judge refused F's application for direct contact, setting aside the existing contact order. He ordered that there be indirect contact by F sending MX a card and a present at Easter, Christmas and on MX's birthday, and M ensuring that F was sent a recent photograph of MX twice a year.

F's appeal was refused by his Honour judge John and F appealed again to the Court of Appeal. The grounds of appeal were that the district judge:

(i) wrongly failed to accede to a request for a further psychological report on the question of MX's wishes in relation to contact;

(ii) failed to analyse whether MX's reported wishes were his genuine wishes;

(iii) failed to analyse whether the temporary harm that would be caused in pursuing contact outweighed the harm that would be caused by the permanent separation of MX from his father;

(iv) gave too much weight to MX's wishes and feelings and failed to take account of his inability to understand M's influence upon him;

(v) was wrong to conclude that all reasonable steps had been taken to facilitate contact when there had been no attempt to test MX's reluctance to see F since contact broke down;

(vi) wrongly allowed the implacable hostility of M to frustrate the contact order without sufficient reason to do so.

A further issue, identified by the Lord Justice giving permission for the appeal to the Court of Appeal, was whether, in the light of the decision of the Supreme Court in Re B (A Child) [2013] UKSC 33, Judge John adopted an incorrect approach to the appeal before him by asking whether the decision of the district judge was "plainly wrong".

Lady Justice Black considered the grounds of appeal, commencing with the Re B point. As to that, she found that:
"By the conclusion of his judgment ... whatever Judge John's formulation of his approach to the appeal, his scrutiny of the district judge's determination had covered the ground contemplated by the Supreme Court in Re B."
Moving on to the other grounds of appeal:

(i) The district judge's approach to to the question as to whether there should be a further report was entirely proper, having regard to the restrictions on the use of expert evidence.

(ii) to (vi) Lady Justice Black considered the balance of harm and found that the district judge:
"... was well aware that it is likely to be detrimental to a child not to have some sort of direct contact with the parent with whom they do not live and that the court should not cease from striving to achieve this except when the end of the road has been reached, all reasonably available measures having been tried."
"... he was faced with an adolescent boy who had not the slightest wish to have a relationship with F and who, having had correspondence from F which demeaned his family, did not wish, for understandable reasons, even to continue to receive letters from him."
She continued:
"The advice of the guardian was that there should be no more attempts at contact. In accepting that advice, the district judge knew that the guardian was criticised by F for taking MX's views at face value. It can be seen from his judgment that he evaluated the guardian's evidence critically, together with all the other evidence that he had read and seen. He demonstrated that he did not adopt an unquestioning approach to her advice by his reasoned rejection of her opinion that there should not even be indirect contact and that there should be a section 91(14) order. However, overall he clearly found her an impressive witness and he was entitled to conclude, as he did, that she had the expertise to assess the situation accurately and had done so."
As for the possibility that there should be some observed contact:
"... the district judge recollected that this had been successful in years past but, having considered the matter with the guardian, he was persuaded that it would be pointless to try again because there was no reasonable prospect of observed contact being possible."
Lady Justice Black went on:
"[The district judge] concluded that "without this 13 year old child supporting and co-operating", direct contact could not be pursued further. He took the view that in the circumstances of this case, it would be harmful to MX to force him to see F against his clearly stated wishes. This view represented his final balance, after considering the whole picture including the harm that MX would suffer from not seeing F. I do not consider that there can be any valid criticism of his conclusion or of the route by which he reached it."
In short, Lady Justice Black could not find any errors in the two judgments of the courts below, and accordingly she dismissed F's appeal.

Lord Justice Lewison and Lord Justice Maurice Kay gave concurring judgments, the latter stating:
"In the difficult circumstances of this case I am entirely satisfied that [the district judge] was entitled and, indeed, correct to conclude that the best interests of this sensitive but battle-weary teenager required the cessation of direct contact at this stage. I should also add that all three members of this Court were favourably impressed by the way that [the district judge] and Judge John (who cannot be blamed for not anticipating Re B (A Child)) dealt with the complex dynamics of this case. It received the conspicuously fair and thorough treatment which it merited."

No comments:

Post a Comment

Thank you for taking the time to comment on this post. Constructive comments are always welcome, even if they do not coincide with my views! Please note, however, that comments will be removed or not published if I consider that:
* They are not relevant to the subject of this post; or
* They are (or are possibly) defamatory; or
* They breach court reporting rules; or
* They contain derogatory, abusive or threatening language; or
* They contain 'spam' advertisements (including links to any commercial websites).
Please also note that I am unable to give advice.

Note: only a member of this blog may post a comment.