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English and Welsh Courts - Miscellaneous
You are here: BAILII >> Databases >> English and Welsh Courts - Miscellaneous >> SA v BO [2015] EW Misc B36 (CC) (14 August 2015)
URL: http://www.bailii.org/ew/cases/Misc/2015/B36.html
Cite as: [2015] EW Misc B36 (CC)
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B e f o r e :
____________________
| S A |
Applicant |
|
| - and - |
||
| B O |
Respondent |
____________________
Ms O in person
Hearing dates: 17th June and 29th July 2015
____________________
Crown Copyright ©
- The Court is concerned with an application by the Applicant father, S A, for a child arrangements order in respect of his daughter, A who was born on 22nd December 1998. The Applicant father made his application in July 2014 when A was 15. She is now 16. He has not met with A face to face for three years. He seeks an order that she should be compelled to leave her mother's household in South Ockendon in Essex and move to live with him in Warrington. He works full time as a consultant at a hospital in Leeds. The Applicant father is of Nigerian origin and is black. The Respondent mother is white British.
- The parents were never really in any proper relationship, it seems, and A has grown up in her mother's household with her step-father to whom her mother was married. Her step-father sadly died in June 2013. The family includes a half-sister to A, R, who is younger and an older half-brother. It is clear that they are a close family and they have all suffered somewhat from the death of Mr O. A has been diagnosed with mild autism but there is no special provision made for her at school, she obtains support as and when a perceived need arises and, having met her, there is no apparent effect on her day to day functioning. Her attendance at school over the last year has been slightly below the ideal.
- I have evidence from each of the parents and in addition I have two reports from Jade Hogg the CAFCASS reporter. I have heard evidence in the witness box from all of them. In addition, the original time estimate for the hearing having been taken up with the evidence of the CAFCASS reporter, the trial was adjourned for several weeks in the course of which I took the opportunity, with the assistance of Ms Hogg and the encouragement of the parties, to meet with A myself. I prepared a note of our discussion and circulated it to the parties.
- Mr A seeks an order that A should come to live with him so that he can take over her care and responsibility for her education. He is concerned that A is not being sufficiently exposed to her paternal heritage and culture and that her maternal family are heavily influencing A against him. He can see no other explanation for her current reluctance even to meet with him. In his evidence he made it plain that he understands that A is very firmly opposed to his plan, but he is quite satisfied that this is entirely the result of the negative influences of her mother's household and that, should I make the order, she, being a well-behaved and obedient child, will obey it. Mr A is very clear that I should disregard A's expressed wishes and feelings in her greater welfare interests.
- The Respondent mother opposes Mr A's plan. So does A. So do the rest of the family. The CAFCASS reporter does not support the plan. Mrs O suggests that it is largely Mr A's fault that he has lost his once good relationship with his daughter. They have both, mother and daughter, come to find his attitudes and his demands of them wearying and that weighs heavily in the balance in A's mind.
- It is, of course, for Mr A to satisfy me on the balance of probabilities that the evidence supports the case for making the order which he seeks. He has been more than ably represented by Ms Sinclair of Counsel who has said everything which could possibly be said in support of the application, and has made impressively skilful attempts to negotiate the significant obstacles to his case presented by the evidence from both sides. I am grateful for her written submissions.
- Ms Hogg in her report focuses helpfully on the results of her discussions with A and also provides a useful resumé of the Applicant father's approach. She has spoken to the school and the maternal family. The reporter records A's own clearly expressed view that she is not influenced in her own conclusions by her mother or the family. She records that A finds her father's frequent discussions about his faith as a born again Christian difficult (she has no particular faith) and she is aware that he blames her mother and step-father for what he perceives to be the deficiencies in her education, both academic and cultural. Ms Hogg does criticise Mrs O for a somewhat casual use of language which others might find racially offensive and she concludes that there is an argument for saying that the maternal family may not have done as much as they should to support A's paternal identity and heritage.
- A has been caught unwillingly, the reporter records, in court proceedings at a difficult time for her, coping with adolescence and the death of her step-father etc. This whole process is very unwelcome to her and, Ms Hogg concludes, all of this has progressively alienated the child from her father. The child does not wish to go and live with her father, indeed does not wish, currently, to meet him face to face. She wishes to be left to sort out her relationship with her father at her own pace and by direct negotiation with him. In the witness box she was clear that A's wishes and feelings had been expressed freely to her with an apparently good understanding of the issues at stake, there was no concern about any undue influence. The child scored well on the self-esteem test and she did not get the impression that the child was at all troubled by racial issues. A was described as a quiet and confident young person. She reported that the school does not have any concerns for her.
- Ms Hogg reported that A had told her that she found her father very serious (she showed the reporter some emails which demonstrated the point) and she was homesick when she went to stay with him. She was particularly upset by her father's negativity about her mother and step-father. A did not want any contact currently and the father had failed to make the most of indirect contact which, had it been regular and approached in a more light-hearted way, might have kept the channels open. The reporter was "wholly against" a transfer of residence, she did not support the making of any order and said A would have to be dragged "kicking and screaming" to see her father, she would not cooperate. It would be firmly contrary to her welfare interests for her to be removed from the environment with which she is familiar and where she feels safe and secure. She was confident the maternal family would encourage contact when A expressed an interest.
- At the conclusion of the reporter's evidence the hearing had to be adjourned and in the interval Ms Hogg arranged for A to be brought to court to speak with me. This was a plan which had the explicit endorsement of both sides and was specifically designed for me to investigate primarily the Applicant father's concern that the CAFCASS reporter had been hoodwinked somehow and had failed to observe the obvious signs of the influence of the maternal family.
- I duly met with A at court on 16th July. In our discussions she confirmed all that Ms Hogg had said. She was polite and appropriately shy. I did not get the impression that she was doing anything other than telling me her views on the situation but she was appropriately deferential given that I had informed her that, while her views were important, nonetheless the ultimate decision was mine. Unsurprisingly, she did not give the impression that she was enjoying the experience of having to take time out of her day to attend an interview with a judge. The record of our discussion has been circulated. Importantly, she told me she had taken some trouble to craft an email to her father recently in which she set out her feelings. She felt "betrayed" by his response that she was simply voicing her mother's views. It was clear that she did not have any concerns about her paternal cultural identity being inadequately supported, she had African friends and she described as good humoured banter the way in which the maternal/paternal cultural differences were dealt with in her mother's household. Her father makes her anxious and his demands are an unwelcome distraction from what she sees as more important things in her life. She is worried that she will be forced to see her father.
- When the hearing resumed Mr A had had the opportunity to consider the outcome of my meeting with A. Unfortunately, despite my firm conclusions to the contrary, Ms Sinclair's instructions remained that her client did not accept that what A was saying could possibly be anything other than the result of malign influences from the maternal family.
- Mr A gave evidence and it became very quickly apparent that the approach and attitudes which had allegedly resulted in the alienation of A from her father were still very much in evidence.
- He told me that, while he was alive, Mr O had been his point of contact for discussing matters to do with A. Mr A felt that, as Mr O was "head of the household" it was "more respectful" to discuss such matters with him. He felt that now he should be permitted to discuss these matters directly with A, as she is of age, but that she is "caged" and "heavily under the influence" of her mother and step-brother. He firmly felt that she needs proper exposure to his Christianity, he would ensure she goes to church, and that he should have a greater influence over her education and particularly decisions about her future. He was clearly unaccepting of decisions which A has already made for her future education which did not accord with his view that she should really be training to be a doctor or a lawyer. Mr A told me that A's mother could make her do "absolutely anything". He was quite satisfied that it was the right thing from A's point of view to ask the Court to compel her to move to live with him. She would obey the Court and he would ensure that she was exposed to appropriate cultural influences and had access to more appropriate educational resources. It was very apparent that he did not accept that exposure to more generic African, or even Nigerian, cultural influences would be sufficient. Mr A was clear that only he and his immediate circle could provide the appropriate environment to satisfy this need. He was very dismissive of the possibility that the Respondent mother could be trusted with the proper care – emotional, cultural and educational – of his daughter. He does not consider that she has done a very good job so far. Mr A told me that if A stayed with her mother he did not seek a contact order as he understood that is something he needs to resolve with his daughter directly.
- Mrs O gave evidence and the overwhelming impression with which she left me was one of fatigue. She is still grieving the loss of her husband and is clearly very weary with the whole process and with having to deal with Mr A. She accepted that her late husband did most of the communicating with the Applicant father and she allowed that because she found the father's demeaning attitude towards women and his bullying style exhausting. She described him as talking down to women and not accepting what he's told by her unless it accords with his view. He blames her for everything and takes everything the wrong way. She described herself as "weary with his way of speaking to me". Mrs O accepted that she had not been very communicative with Mr A about matters like A's education (he had completely unrealistic expectations of her academically and A knows it) or her step-father's death. Her explanation was that she had had many things going on in the life of the family; her younger daughter had been unwell, A had had various medical issues (none of great seriousness but which explained the poor attendance record at school) and her husband had died. In the circumstances she could not face dealing with Mr A as well and took the line of least resistance by just keeping him in the dark. It was not an ideal strategy but it was entirely understandable in the circumstances and, having heard from Mr A, one with which I have great sympathy.
- Mrs O told me that A had last seen her father about 3 years ago and that she had been unhappy when she went to stay with him. She had telephoned her mother very distressed because she was unhappy and did not like the food she was given which had made her constipated. Mrs O had encouraged A to talk to her father and didn't realise she hadn't. She denied attempting to influence A who she described as being able to make her own mind up.
- That was the evidence.
- Mr A is clearly a man of considerable intellect, an unfortunate side effect of which is that he clearly looks down on Mrs O and her household. It is very apparent that he has a fairly low opinion of what they provide for A when compared with what he clearly sees as the significantly greater material advantages and intellectual stimulation which he would be able to offer her. He seeks only a transfer of residence for this 16 year old and makes no application for a contact order. Having heard and considered all the evidence in this case, together with the submissions made on his behalf, I have no hesitation in concluding that Mr A's application is one utterly devoid of any discernible merit.
- Mr A pointed out to me on more than one occasion in the course of his evidence that he expected the Court to "do the right thing" regardless of the expressed views of the subject young person. I fully propose to do what I unhesitatingly regard as the right thing in the welfare interests of A. Mr A is unlikely to agree with my conclusion.
- Mr A demonstrated by his approach and his answers that he has what can most charitably be described as an antediluvian attitude towards women, their role in a properly ordered household and their ability to make sensible decisions of any importance for themselves. Many would find this offensive. It is difficult to imagine how he has sustained an apparently thriving medical practice in 21st century Britain whilst harbouring such attitudes. I am entirely satisfied that Mrs O's description of his behaviours and the consequent difficulties which she faced in dealing with him are both well founded and accurate. It is, one might say, to her credit that she only exhibits exhaustion as the result of her dealings with him over the years. Many others might have allowed it to spill into frustration, irritation or worse.
- Mr A purports to place the decision to "do the right thing" in the hands of the Court as if, somehow, he is doing the right thing by doing so. It is in fact an abdication of his parental responsibility which is designed to make him feel better about a decision which any sensible and sensitive parent would have realised long ago is completely inevitable, indeed should have been obvious before he started these proceedings. Any responsible father would have listened to what his daughter is saying and realised that this was, on a number of different levels, a singularly inappropriate way of setting about achieving what he thought might be best for his child. He has, of course, had many opportunities during the course of the proceedings to open his eyes to the truth and spare her this pain and, with apparent stubborn indifference, refused to take any of them.
- Mr A seems to take the view that what he chooses to offer must, by definition, be in the best interests of his child, and anyone, including the child herself, who takes a different view either has malign motives him or herself or is under the influence of others who do. He is so apparently entrenched in his view that it is quite impossible he could bear any responsibility for the deterioration in the relationship, that he refused to accept even from me that A appeared to be expressing a view which is her own. I, too, had apparently been duped by the Machiavellian machinations of the maternal family; only he really knows what is in his own daughter's mind and insofar as the evidence seems to show that she holds a view contrary to his own, that is only evidence of that malign influence of others.
- Indeed, in his evidence Mr A told me that he could not see that he bore any responsibility at all for the situation which has arisen between A and him. If that is genuinely the case, his lack of insight into the evident deficiencies in his own parenting style is quite alarming. I am satisfied that it is he who is primarily, if not exclusively, responsible for the gradual deterioration in his relationship with A. I am very clear that the proposal which he makes, for all its soi-disant comparative intellectual, spiritual, cultural and material sophistication, runs a very poor second to what Mrs O and her family have to offer. I will make the decision for him but I do not accept that this entitles him to "blame the judge". He should realise that this is an obvious decision which he should have taken long ago, spared the Os the pain and concentrated his efforts on repairing the damage he has caused. He is not justified in hiding his deficiencies and want of proper responsibility behind a reluctant public acquiescence with the decision of the Court with which he is able to maintain private disagreement. The mantle of parental responsibility is not one which a parent can put on or take off depending upon a subjective view of the clemency of the prevailing climate. He has shown himself at best obdurate in his refusal to accept the blindingly obvious, at worst he has sacrificed a good portion of the relationship he might otherwise have had with his daughter on the altar of his vain and arrogant refusal to afford due respect to the divergent views of his female child.
- In the course of the hearing I have to accept that I may have allowed my own frustrations with Mr A's position to become evident and I apologise for that, primarily perhaps to Ms Sinclair. In part this is due to the realisation that I was unwittingly complicit in a mildly abusive process whereby this child was subjected to an undoubtedly anxiety provoking interview with me when, as it became apparent, her father had absolutely no intention of paying any attention to my conclusions about the meeting, unless, of course, they had, by some miracle, conformed with his own views. It is also worth pointing out that this process of abdicating his parental responsibility to the Court has consequences beyond the pain and distress which he ought to have realised he is causing to A and the O household. The Court's resources are scarce and this application, taking up as it has sizeable chunks of two court days and further time in the preparation of this judgment, has been a shamefully wasteful squandering of those resources which would otherwise have been far better employed in dealing with decisions which really do need to be made for other vulnerable children.
- I turn to the welfare checklist. A's wishes and feelings are plain. I am entirely satisfied that they are hers and are uninfluenced in the way Mr A suggests by her mother's family. She presents as a thoughtful and sensitive person who has found the process through which her father has forced her extremely upsetting. She has shown that she finds it distressing to have to disappoint her father but clearly takes the view that a move to her father's household is one she cannot contemplate and she has genuine and entirely valid reasons for it. Mr A's refusal to accept that reflects extremely poorly on him and will have inevitably set back any meaningful reconciliation for a considerable period. Given her age and understanding, it would be very difficult to present any sensible argument that her views be disregarded even if the other aspects of the welfare checklist were not so positively supportive of her decision.
- I do not think, on the evidence I have seen and heard, that Mr A is capable of providing for A's emotional and educational needs and I have grave doubts about his ability to provide for her physical needs save in the most basic sense. It is clear that he does not respect the choices she has made for the future of her education and she would come under considerable pressure to alter those choices to conform to his expectations. That is an obviously highly undesirable situation for any child of this age to be in. She already regards him as emotionally distant, stern and serious. I cannot imagine that the man I observed in the witness box would either be inclined to address or capable of accommodating the emotional needs of an adolescent female who has been brought up in a nurturing environment in which she has been rightly encouraged to achieve her own potential and make her own decisions.
- A change in her circumstances to live in her father's home would be a disaster for this child. She would be removed from a home and educational environment with which she is familiar and in which she is evidently thriving. She would be removed from the immediate support and evident warmth of her home with her mother, her half-sister and step-brother at a particularly confusing and vulnerable time in any teenager's life and at a time when the family is still grieving the loss of her step-father whom she clearly loved. A would be transported to an alien and relatively hostile environment in the 'care' of a man with whom she is not particularly familiar, in a home which she has found uncomfortable and under a regime which is likely to pay scant regard to her genuine welfare needs. It is further clear that he would expect her to adopt and conform to his own Christian beliefs and practices regardless of the fact that she holds no sympathetic belief of her own. Her father barely knows her at all and certainly knows almost nothing about her which could be remotely described as current, in no small measure because he has made no real effort to find out. Mr A has demonstrated often in the course of these proceedings that he will not listen to her voice.
- At her age the Court should only contemplate making an order if exceptional circumstances demand it. The circumstances of this case demand the very opposite. The only vaguely legitimate concern which the father has raised might be the suggestion that her heritage and cultural identity are not sufficiently supported in her mother's household. The mother accepts that she may have used an old-fashioned and now unacceptable term when talking of "coloureds". She accepted the correction of the CAFCASS reporter and apologised in the witness box. Having listened to her and spoken to A I am quite satisfied that there is no evidence to suggest that A has been or may be subjected to any racist influences at home. A herself is quite content with her exposure to cultural influences which reflect her African heritage and whilst that may not be as narrowly focussed as Mr A might demand, that may not be such a bad thing. A herself does not see it as an issue of any real significance, nor do I.
- I am quite satisfied that she would suffer emotional harm if I were to attempt to force her to live in her father's home. All the evidence to support the poor quality of the care she would undoubtedly receive there has been set out in the judgment already. In addition she would almost certainly refuse to go willingly. The emotional trauma which this child would suffer by taking such a course should, in my judgment, be absolutely plain to even the most emotionally myopic. It reflects very poorly upon her father that he should even suggest putting her through that process.
- For all the reasons which I hope by now are clear, I am very firmly of the view that Mr A is quite incapable of meeting this child's needs. By putting his daughter and her family through these proceedings in the way he has, he has demonstrated in a very stark way just how deficient his parenting is, and is likely to remain. He could not even bring himself to consider on any remotely sensitive level a letter written to him by his daughter and into which a great deal of thought and anguish had been poured. Having arrogantly dismissed it as plainly the work of her mother because it dared to challenge his settled and egocentric view of the order of things, he has left her feeling "betrayed". I fully understand why she feels that way.
- Mrs O, conversely, has shown herself to provide an environment of warmth, support and love in which this delightful young lady has been allowed to blossom, shielded from the worst excesses of her father's intolerance. Her household may not be able to boast quite the same level of material "benefits" which Mr A's might but that is a very dubious disadvantage. A clearly has all she thinks she needs and on every other measure it seems to me that the O household stands head and shoulders above the alternative on offer. She is evidently being supported on her journey into young adulthood and encouraged to identify and achieve her own potential rather than been pressured and cajoled into targeting unwelcome and unrealistic goals set for her by others.
- It would be positively harmful to this young person for me to make the order sought and I unhesitatingly dismiss Mr A's application and will make no further order.
- This judgment will be formally handed down at 10am on 14th August 2015 in court 8 at Chelmsford County Court. Neither party needs to attend but I shall be happy to receive any representations as to the form of the order if necessary.
HHJ Lochrane :