High Court of Justice in Northern Ireland Family Division Decisions

(i)        An application dated 2 May 2003 by T for a joint residency order in respect of both children.  In the event this was the only application that was processed to its full conclusion before me.

(ii)       An application by T "to remove the interim order made by Judge Markey that permits C to participate in contact only when he wishes to do so".  Upon perusal of the papers the only document to that effect was a direction made by Judge Markey on 28 January 2005 which read:

"Pending advises (sic) from the experts in the case, if the child is firmly refusing to go to contact the mother may choose not to send the child to contact."

Although it does not expressly say so, this clearly referred to certain contact orders which have been made in the past.  The first contact order appears to be made on 22 December 2000 by Mr Perry RM which was varied and extended until a final order on 11 December 2001 by Mr Nixon RM.  Under those orders the father had both overnight and holiday contact.  The mother had sought to reduce downwards that contact but at a hearing on 11 January 2002 an order was made by consent.  Although there clearly has been dispute and acrimony in the ensuing period about the issue of contact, it would appear that  the contact arrangements evolved so that the mother, with whom the children were residing pursuant to a residence order made by Mr Nixon RM in December 2001, was required to permit the children to visit or stay with the father every Wednesday overnight and throughout alternate weekends.  Arrangements generally differed over holiday weekends and the position appears to have been that the father was to be offered a fortnight in July and one week in August.  Before me it was agreed by the parties that the making of an Article 8 contact order by its very nature did not require a child to be forced to attend contact against his will .To that extent the direction made by the court on 28 January 2005 was superfluous and should not form any part of an order with reference to the contact.However  I hasten to add that this must not be seen as a carte blanche for one spouse to frustrate contact on the pretext that a chid is reluctant to attend.Every encouragement must be given to such a child to attend contact and if the refusal becomes regular a return to the court must occur for appropriate remedies to be considered by the court .

(iii)      A third application was for a prohibited steps order sought by T in relation to the prescription of medication Ritalin for the child C.  That was also resolved prior to the hearing in that the application was withdrawn on terms of an agreement signed and presented to me which I intend to attach to this judgment as Appendix 1.  The resolution of this matter masked a protracted dispute between mother and father about the need for C, who as a child  affected by Asperger's Syndrome was to be treated with a stimulant medication ritalin.  There was a report to this effect from Dr Kenneth Aitken independent consultant child clinical neurophysiologist before me.  The application had arisen out of a dispute between the parents as to how often the ritalin should be administered but happily that matter has been resolved in the terms of the agreement now exhibited to this judgment.  I therefore order that the application for a prohibited steps order be withdrawn.

(iv)      The third application was by S for an order varying the contact order of 11 January 2002 to remove overnight contact on Wednesday of each week in respect of C and B.  This is also not being proceeded with on the basis that the precise periods of contact have been agreed.  I therefore give leave for that application to be withdrawn.

(v)       There was a further application by S for the removal of all photographs of the children from the internet.It was the mother's case that the father had placed the photographs of the children on a site which was available to the general public and she was concerned that these photographs would be easily available in the public domain without the consent of the children.  Happily that matter has also been resolved in that the applicant has accepted that he will remove the photographs of C and B from the website and undertake not to put any other photographs onto the site without S's prior approval and without introducing a password for the website.  Accordingly I also gave leave for that application to be withdrawn.

(vi)      There was an application by the father that the court make an order pursuant to Article 179(14) to prevent further applications being brought before the court without the leave of the court.  Both parties agreed that they would be bound by such an order and I will deal with that later in this judgment.

            In effect the one matter to be determined by me, apart from the application under Article 179(14) of the 1995 Order was the issue as to whether  a shared residence was now appropriate.

Background

"1.       Both senior counsel and Mrs Pauley BL indicated that this long running and very acrimonious case now warranted transfer to the High Court.

2.         I referred counsel to the decision of Mr Justice Gillen in the matter of T, C, P, M and B (Children Allocation of Proceedings) Order (NI) 1996 – GILC3926 delivered 21 May 2003 and in particular paragraphs 5 and 6 thereof.  Ms McGrenera QC asserted that this case passed all of the criteria listed in paragraph 6 and Mr Toner QC did not dissent."

In that a case of T and Others referred to, I set out examples of appropriate criteria which should be considered when the discretion under Article 10 of the Children (Allocation of Proceedings) Order (Northern Ireland) 1996 was to be invoked.  These included cases which possessed one or more of the following features:

"(a)      Voluminous and/or complex issues of law.

(b)       Unusual complex psychological  or emotional issues.

(c)        Considerable expenditure of public monies.

(d)       Particularly vulnerable parties and/or unusually unco-operative litigants.

(e)        An unusually long defended case."

Given the history of this case it did not surprise me that both counsel and judge considered that all of the criteria I have outlined were involved in this case.

"C stated that he has found the lengthy court proceedings distressing.  He stated 'I don't want to take sides – I hate it when they (his parents) are fighting'."

I formed the clear impression that DOS was absolutely accurate when she said she did not encounter any particular difficulties in communicating with C and felt that he was articulate and entirely capable of expressing his wishes and feelings.  The saddest aspect of this case is that whilst these parents hear this child, I am not convinced that they are listening.  Marital conflict is stressful and emotionally arousing for children producing a number of internalised problems such as anxiety, depression and withdrawal.  I take judicial notice of the fact that countless studies have shown that in general a close relationship with both parents is associated with positive adjustment in children after separation and divorce.  Acrimonious dispute between adults is calculated to cause profound and lasting emotional damage to children and I am completely convinced that there is a real danger of this occurring in this instance unless both these parties step back and readdress their conduct in this case.

The Deputy Official Solicitor

"He had told his mother on Monday evening that he wanted to contact me and she had simply replied that if he really wanted to then he could telephone."                    

He alleged that over the course of the weekend contact when he was in the car with his father on the Friday evening, he had been behaving in a silly way.  He apologised to his father and then this lead to a conversation with his father in which T said to him "nobody believes you – everyone thinks you are a wee liar."  C was concerned that the matters contained in my report dealing with his conversation with the father on 19 October 2005 would be denied by T.  When the Deputy Official Solicitor asked C why he was concerned about that he said "that is usually what he does."  C went on to say that over the weekend his father had asked him to sort things out with his partner and had repeated that "if it came to a choice between (the partner) and you, you will lose."  The boy expressed to the Deputy Official Solicitor a feeling of responsibility for the case being in court , stating that his father had told him that he had to be in court the next day because of him.  C interpreted this as meaning that his father blamed him for the fact he had to attend court.  The Deputy Official Solicitor took the opportunity to reassure him about these matters and discussed with him when it was appropriate to be contacted. 

Ms McG

The applicant father

            He believes that a shared residence order should be made to reduce hostility with the child C, to reflect the amount of residence that the child has with him, and for medical care reasons which now seem to have been resolved between mother and father.  It was his view that whether dealing with the statutory agencies, school, the child or S, the residence order in favour of S was being used to trump his role and his opinion.  He felt that the children considered that she was better able than him even though they shared parental duties.  It interfered he felt with his ability to perform his duties and illustrated this by indicating that when he sought disability allowance from Castle Street in Belfast, he was told he could not receive it.  He asserted that he was now living in the former matrimonial home, that his intention was to stay there having reached an agreement with S but that otherwise he would have been deemed less suitable to obtain accommodation from Northern Ireland Housing Executive because he does not have a residence order.  It was his view that he and S share parental responsibilities as they are the two main decision makers.  He acknowledged that it was foolish to adopt anything other than a collaborative approach to the children.  He referred to the climate of discord and acrimony between himself and S where in his view S saw court proceedings as a victory in such matters as administering ritalin to C.  Para. 7 of his affidavit of 7 February 2005 records:

"Following the October 2004 hearing (S) represented to C that my agreement to give him ritalin for a short period was a victory for her.  He recounted to me that how both his mother and his maternal grandmother referred to me as an 'auld blow', 'loser', 'failure' and that I was a 'bastard.'" 

At para. 8 he recorded:

"The above derogatory remarks and others too numerous to recall are a re-emergence of the denigrating behaviour that had previously been a persistent and damaging part of the parental alienation engaged in by S (and her mother) since (S) and I separated." 

It was his view over the years the children regarded him as a lesser person than their mother.  He asserted that it was dangerous for them to think that their father was a less trusted person.  In his view they realise the power imbalance even though they did see his ironing, washing clothes, cooking etc. for them.  He reiterated before me, as he did in his statement of 10 September 2005, that in his opinion the social services had not treated him on an equal footing and he expressly criticised named social workers for not speaking to the  children about their proposed reports. He  considered that his children's rights to be involved in judicial proceedings had been breached under Article 12 of the UN Convention on the rights of the child.  He indicated that Mrs L McG, a social worker who has played a significant role in this matter, openly admitted to him at the time of interviewing in 2003 that despite being asked to report on the issue of his shared residence order under the 1995 Order, she was not aware that such an order existed and saw the issue "within a paradigm" that only encompassed contact and residence.            

When I enquired of her what she knew about current case law and judicial thinking around shared residence she stated that this was purely a matter for the court and that it was not her responsibility to keep up to date with current case law in the area.  Her ideas were that a shared residence order is not appropriate while there are unresolved issues between the parents.  This conflicts directly with ratio of the seminal Court of Appeal case in D v D which was decided in 2001.  I am forced to conclude that such a seminal case on the subject of shared residence either has not been communicated to Mrs L McG or alternatively was communicated but not embraced by her.  I am aware that after speaking with (another senior social worker) that this potential lack of awareness reaches up the chain of command."   

He went on assert that when he asked C if he had seen the social worker and if he understood all that had been discussed with her, the child said that it was "gobbly gook".  In essence his case was that the children do in fact live with him and  he does carry out all domestic duties for them without complaint.  It was his view that the failure of the social workers to interview these children in his home was an important factor in them failing to pick up this aspect of this case.  He denied that he had been in anyway disruptive or that he had attempted to interfere with any other major decisions taken by the mother.  It was his view that his status as a father was reduced in the eyes of C by virtue of him not having a joint residence order.  In his view a joint residence order might lead the children to view him with the same respect as they have for their mother.  It was his opinion that if there was no shared residence order, the mother would regard this as another victory.  He considered that she would tell the child about the proceedings and C himself would see this in terms of victory or defeat.  All he wished to do was show the children that he was an equal parent with the mother.

            (a)   In December 2004 T had remonstrated with B over his behaviour and as a result B had indicated that he would only visit his father at Christmas to get his Christmas presents.  T had sent an e-mail to S which included the following:

"Far from pointing the finger at you (as I understand from C that you encouraged him to come up) B has declared that he is only coming up as he doesn't want to lose out on his Christmas presents.  At this juncture I am seriously considering giving these to a child in the area who will appreciate them, so he will be sorely disappointed if that is all he is coming for.  Unaided he is turning into a self-servicing, manipulative child, and if he continues in this vein I will have to consider asking you to work with me by not sending him up for a short period.   I would be happy if you made arrangements to come and get him tomorrow but will understand if you have other things arranged.  He is of an age to make his own mind up now, and if he is adamant that he doesn't want to come up then his voice needs to be heard and action taken.  If that is how he is minded then he can stay with 24/7.  Either way I am not going to be dictated to by B or anyone else."  

(b)       The incident at New Year 2004 received extensive coverage in the course of the evidence of both mother and father.  T denied the assertion of S (contained in her statement of 17 February 2005 at para. 7)which averred that C had alleged that T had:  

(i) grabbed his head and banged his head of the car door;

(ii) called C a spastic, a fucking idiot and a frigging idiot;

(iii) that the child had to go and see a psychiatrist before he ever came back for contact again;

(iv) that B was not to discuss anything that happened with his mother;

(v) that during a visit to the cinema C had behaved in a silly way and A had stuck his car keys in his leg.

T alleged that C had ascertained the word spastic from an incident which had occurred in a snooker room when he had been waving his arms widely and another boy had been calling him a spastic.  T alleged that he had never called him that.  He accepted he may have called him an idiot but had not used any expletives.   He denied sticking the car key into his leg but when he had remonstrated with the boy in the cinema for kicking a seat in front, he could have had his car keys in his possession when doing this.  T asserted that because of the boy's condition his recollection is poor and whilst he would have remonstrated with him over his behaviour he denied the further assertions in S's affidavit that he had told C that he belonged in a mental home, that he was going to court to say he did not want to see him again or that he was a messed up little boy because his mother brain-washed him.             

(c)        T referred to a further  incident where C had struck another child N and told lies about the incident to T.  In this context T described C's challenging behaviour, indicating he had problems in school, that he craves help and attention.  T frankly admitted that there were occasions when he may not have dealt with the boy's behaviour in the best way indicating that he would not find it surprising if C did find his criticism from time to time hurtful.  However he felt that such criticism was very infrequent on his part.  In this context T accepted that he had disciplined C by indicating to him that if he was not going to come to contact then T would refuse to let him come on other occasions.  He denied that the boy had any reason to feel rejected and that what the boy was saying was in fact influenced largely by his mother S, the child often borrowing her phrases such as "parental responsibility," "auld blow" etc.   

S the mother of C and B

(i)        She stated that C was an exceptionally bright perceptive boy with immense insight into personalities and behaviour.  She described him as having many interests with a strong sense of humour.  At school he liked science and history but struggles with maths and English.  She felt that he does struggle to control his behaviour but he does have a strong sense of justice and that in her view "he could not tell a lie to save his life."  She said that she did not believe everything that he said as gospel but she does believe him "a lot of the time."  While she did recognise that he is likely to relate to matters with a bent in his favour, she feels that in the main he finds it difficult to tell lies.  She accepted that he can be silly, hyperactive, hard to control and argumentative.            

(ii)       The witness insisted that she encourages C to have contact with his father as she does with B.  It was her view that the boy was crying out for someone to listen to him and that was the benefit of the Deputy Official Solicitor.  He had wanted to speak to someone who would tell him the truth.  On the occasion when C had caused an interruption in the court proceedings with a message from school demanding to see the Deputy Official Solicitor she said that the previous evening she had told him that if he felt there was something to relate, he should telephone the Deputy Official Solicitor.  She felt he needed to be listened to.  

(iii)      In cross-examination she did accept that the boy may be "working" the two of them but she was concerned about C being distressed when taken out of his routine for example on the occasion of the school incident.

(iv)      The witness was opposed to the joint residence application for a number of reasons.  First she felt that it would bring about a change in C's mind and he would not be able to cope with it.  On a personal level, she felt that this was T's "ticket to interference."  She felt that he would go out of his way to make it difficult.  She related that in the past he had interfered in a number of matters including schooling.  She recorded that in her opinion T was still attempting to dictate her life.  She asserted that C knows that he lives at home with her and that his father is somebody he lives with on Wednesday and the weekends.  It was her view that if a joint residence order was made, he will think that he is not being listened to.  He knows that he has difficulties in the relationship with his father and he will conclude that he is not being believed.  In her view the boy feels rejected and that the incident over contact where his father told him that he would stop him coming to contact was an instance of him being punished.  It was her view that a shared residence order would make no difference to B and it would not change his relationship in any way.  On the other hand she felt that C believed that living with his mother is where his home is, that he is emotionally secure there and that is where receives unconditional love.  He needs to be reassured unconditionally.  It was S's view that T "despises C a lot of the time."  It was her view that C has an insight into this.  When it was put to her by Mrs McGrenera QC that C had told the Deputy Official Solicitor that he did not see how a shared residence order would change anything for him and very much viewed the situation in practical terms, she retorted that she still felt that a change now would be too burdensome for him and that he had asked her what shared residence was in circumstances where she was loathe to discuss it in detail.

Legal principles

"'Contact order' means an order requiring the person with whom a child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other."

It is important to appreciate that this is not an order forcing a child to attend contact.  All it does is require the person with whom the child lives to allow the child to visit or stay.  Accordingly any suggestion therefore that the child is permitted to refuse to attend is redundant because the order makes no such imposition upon a child.

"'Residence order' means an order settling the arrangements to be made as to the person with whom a child is to live."

Article 11(4) of the 1995 Order declares:

"(4)      Where a residence order is made in favour of two or more persons who do not themselves all live together, the order may specify the periods during which the child is to live in the different households concerned."

"118.   The essence of the decision in D v D seems to me to be as follows.  It is a basic principle that post separation, each parent with parental responsibility retains an equal and independent right and responsibility to be informed and make appropriate decisions about their children.  However, where children are being looked after by one parent, that parent needs to be in a position to take the day to day decisions that have to be taken while that parent is caring for the child.  Parents should not be seeking to interfere with one another in matters, which are taking place while they do not have the care of their children.  Subject to any questions which are regulated by a court order, the object of the exercise should be to maintain flexible and practical arrangements whenever possible. 

119.     D v D makes it clear that a shared residence order is an order that children live with both parents.  It must therefore reflect the reality of the children's lives.  Where children are living with one parent and are either not seeing the other parent or the amount of time to be spent with the other parent is limited or undecided, there cannot be a shared residence order.  However, where children are spending a substantial amount of time with both their parents, a shared residence order reflects the reality of the children's lives.  It is not necessarily to be considered an exceptional order and should be made if it is in the best interests of the children concerned."

"A shared residence order had to reflect the underlying reality of where the children lived their lives and was not made to deal with parental status.  Any lingering idea that a shared residence order was apt only where the children alternated between the two homes evenly was erroneous.  If the home offered by each parent was of equal status and importance to the children an order for shared residence would be valuable."

"But perhaps more crucial for me was the judge's finding that between the  first and second days of the hearing the mother had been developing plans to marginalise Miss W.  In that context it is relevant to refer to the publication in July 2004 of the Government's Green Paper in relation to contact difficulties.  That Green Paper has led to the relatively recent publication of the draft Children (Contact) and Adoption Bill.  The Government has, by its consultation paper and its subsequent proposed Bill, highlighted the very great social problems that have been developing over the last few years as a consequence of an increased tendency for primary carers to ignore, or to observe only in the letter, court orders designed to guarantee contact to the absent parent.  The whole purpose of the Bill is to introduce new powers and management techniques for judges to combat such adult manipulation.  The CAFCASS officer had expressed a clear fear that, unless a parental responsibility order was made, there was a real danger that Miss W would be marginalised in the children's future.  I am in no doubt at all that, on the judge's finding, the logical consequence was a conclusion that the children required firm measures to safeguard them from diminution in, or loss of, a vital side of family life – not only the relationship with Miss W but also with her son.  The parental responsibility order was correctly identified by the CAFCASS officer as the appropriate safeguard.  The judge's finding required a clear and strong message to the mother that she could not achieve the elimination of Miss W or even the reduction of Miss W from the other parent into some undefined family connection."

C is a very challenging child  affected by asperger syndrome.  I believe that he is both insecure and troubled.  He is extremely fortunate to have two parents who in my view clearly love him and are committed to him . Sadly  however they  do not seem to appreciate how deeply he is being affected by these lengthy court proceedings and the stress occasioned by their rancorous disputes.  This case demonstrates the value and importance of children having their own separate representation in cases such as this where the danger exists that the parents have allowed their own internal dispute to mask the detrimental effect on the child.  The DOS has approached this matter in a skilled and insightful manner throughout.  The report of September 2005 which records:

"C stated that he found the lengthy court proceedings distressing.  He stated 'I don't want to take sides – I hate when they (his parents) are fighting'."

echoes the refrains found in the reports of Ms McG

As I have indicated above parental dispute  by itself is not a reason   for refusing a shared residence order.  But it does serve to highlight the lack of insight these parents have into how troubled this child is by their failure to lift him above their own personal battle.  Both parents  have allowed this child to become embroiled into their personal dispute and the result is that the endless court proceedings have prevented him leading a normal life as a child and placed an insuperable burden upon him.  The mother is far too ready to permit him to take sides in the disputes with T  and to at least  tacitly encourage him to explore the issues in the case with the Official Solicitor at the slightest suggestion on his part.She fails to see that this is happening because neither she nor T are sufficiently prepared to address his real concerns about  this seemingly endless  litigation   A classic example of this was the child telephoning the Official Solicitor during the court proceedings at a time when he should have been in school concentrating on his scholastic lessons as would be normal for a boy of only ten.It looks as if his mother had approved this course of action the night before.  I believe that she was more than happy to allow him to confide in the DOS some further complaints about his father.  Equally so, the father is far too ready to question him about what discussions have taken place with the social workers, for example in the week before the trial and to raise regularly the court proceedings with him.  I fear that both these parents seem to have forgotten that this child is only ten years of age.  The mother in my view is clearly speaking in a derogatory manner about T in the hearing  ofC and I believe T's account that the boy has referred to him as "an old blow", "a failure" and a "bastard".  She either deliberately lets the boy hear these remarks or else she is far too indiscreet in discussing T within the hearing of C.  In asserting that she does not believe the boy tells lies, I am satisfied that this is an indication that she is prepared to accept any criticism whatsoever of T voiced by C and the danger is that C, in order to please her, is more than anxious to criticise his father in front of her.  It was a telling remark that she made to me that she believes that T despises the boy at times.  I reject that completely.  T is a loving father who may be misguided in a number of areas but S must come to realise that he loves this boy deeply and that C desperately needs to be reassured by her that this is the case.This child craves the unconditional love of each of these parents and it is about time that both gave him the necessary reassurance about the other.  Equally, T is prepared to think the worst of S on virtually every single occasion.  He is at times  self opinionated and on occasions ,perhaps unwittingly, far too insensitive to the needs of this child.  This is a little boy who is troubled and insecure.  T fails to recognise that the boy does feel rejected and is testing the boundaries of his father's love for him.  Any ten year old, much less this troubled little boy would find it difficult to reconcile himself to P's new partner and will be very prone to misconstruing statements such as those made by T that he would choose his partner's version over his into a belief that his father would choose his partner over him.This is not an occasion for castigating him as a liar but a time for adult understanding.  T fails to recognise how wounding it is for this child to be told, however angry he may have made T, that T will stop him coming for contact or that he needs psychiatric help (which I believe he did say to the boy) or that he is regularly a liar.  I formed the view that at times this father  is far too wedded to a legalistic and censorious approach to his child and insufficiently aware of his  cries for help and reassurance.  T needs to rebuild his relationship with this child with more patience, less criticism and more understanding.  He is far too confrontational not only with the boy, but with anyone who takes a different view from him.  I reject entirely his criticisms of the social worker in this case who I believe has worked tirelessly in the interests of these children and whose view is essentially echoed by the DOS.  T is ever anxious to confront social workers with legal points denigrating their apparent lack of knowledge of legal developments and accusing them of mismanagement.  My attention has been drawn by counsel to Re R (a minor) (court welfare report) CA 5 April 1993    (December (1993) Fam Law 722) which dealt with a case where a social worker's report did not deal with the relationship between mother and child based on observations.  I recognise entirely the duty of a social worker to see all the relevant people and to see the child with each of those people wherever possible.    That case is clearly distinguishable from the present instance where T has been confrontational with social workers.  Ms McG attempted to interview T prior to going on annual leave for the purpose of the report of September 2005 but was met with a heated debate regarding her "mismanagement of the case" and an abject refusal to engage meaningfully with her.  When two other social workers did make contact with him, it was evident that the issues that he raised were in relation to legislation and his opinion that the social worker and the Trust did not have sufficient knowledge of the law in court proceedings. Whilst   it  is obvious it would have been preferable if the social worker  had  met with the children in T's own home, I am satisfied that T's behaviour created an impediment to this eventuality and in any event has not deflected me from discovering the true views of these children