When mother has died, and father wants the child to live with him, why did the High Court order the child to remain with mother’s friends, and that father pay towards their legal costs?

As an object lesson of how not to conduct Children Act litigation, the case of Re E-R (Child Arrangements) [2016] EWHC 805 takes some beating.  The case concerned T, born in 2009 who had been living with her mother (M) in Cornwall after her parents’ separation and divorce in 2011. She had remained in touch with her father (F) for a couple of years before he began cohabiting with his new partner and her teenage children in Suffolk. No doubt in part due to  the monstrous journey involved in getting from Cornwall to Suffolk for such a young child, contact dried up to such an extent that there was none at all for a two-year period.

Very sadly M was diagnosed with terminal cancer in 2011.  Efforts were made to restart contact between T and F, which had some success. In June 2014 M and T moved into the home of neighbours and friends, Mr & Mrs H, and it was M’s view that that T’s primary home should be with them after her death. M died 10 months later.

Litigation

Sadly this position consigned the last months of M’s life to Children Act litigation, which must have been unpleasant for all.  At M’s instigation, Mrs H made an application for a Special Guardianship Order without notice to the father, and M also sought to appoint Mr and Mrs H as T’s testamentary guardians. Mrs H was given parental responsibility for T by the court.  In turn, the father applied for a Child Arrangements Order (CAO), and it was in connection with this application that T began to spend time of increasing quality, to include proper staying contact, with her father before and after M’s death in April 2015. However, T continued to live principally with Mr & Mrs H, who were active (at that stage) in fostering the relationship between T and her father.

The hearing of the father’s CAO application had come before the court, in January 2015, just before M died. After appeals, the matter came back before Cobb J in April 2016.  On the one hand there were the claims of the remaining natural parent who clearly loved T, and with whom T had begun to have an increasingly meaningful relationship. On the other were Mr & Mrs H, whom Cobb J found to have provided continuous good quality care for T, providing T with a strong association with her mother, and who had a sufficiently close relationship with her that they would consider moving to Suffolk if T went to live there, following F’s application. They had also fostered the relationship between T and her father, although this inclination declined during the litigation such was the manner in which F approached it.

A close call one might think.

F’s behaviour during the litigation

Despite their efforts, Mr & Mrs H were assailed by allegations from F throughout the litigation.  He was cynical of their motivation, suggesting that it was for their financial benefit; he suggested that T was at risk of emotional and physical abuse at their hands, and even that Mrs H had sexually abused T. Despite the enormity of these allegations, which were made continually through the proceedings, Cobb J found F had been unable to support them with any real evidence at all.

F was not content with traducing Mr and Mrs H. He did the same with the professionals involved in the proceedings.  The assessment of the Consultant Clinical Psychologist, jointly instructed, was dismissed by F as “uneducated drivel and slanderous”.  F continually invited the involvement of the police and social services into the activities and lives of Mr and Mrs H, and even into the banking arrangements of T’s maternal grandfather (who was assisting with the payment of legal fees).  The Children’s Guardian (when one was eventually appointed, such was the acrimony) was accused by F of “astounding incompetence”.  Mr H was also accused of alcohol misuse, for which liver function tests found no evidence.

Against this background, Cobb J reached the clear conclusion that T’s best interests would be best served by remaining in the care of Mr and Mrs H, and he made a Child Arrangements Order that T live and make her primary home with them.  Orders were made for T to spend significant and regular amounts of time with her father, working towards there being an equal split of holiday time.

Conduct of Litigation and Costs

While this case establishes the paramountcy of the welfare principal, in even these unusual and sad circumstances, the more novel aspect of the case was that an order for costs was made, which is a rarity in Children Act litigation.  Alongside the allegations he had made against Mr and Mrs H, F had made a number of interim applications, all unsuccessful, over the year long period of litigation.  This included an attempt to prevent T from attending bereavement counselling which interfered with contact meetings, another attempt to prevent T attending a family wedding in Alaska on account of the alleged threat of terrorist action, and several applications to remove the jointly instructed clinical psychologist.  The ill-effect of these applications was magnified by his failure to attend any of the resulting hearings.  Cobb J’s criticism of the father’s conduct of litigation was generally severe, and one wonders the extent to which F’s lack of self-awareness and empathy, which this conduct demonstrated, contributed towards the CAO that was made.

So far as costs were concerned, Cobb J. observed that costs did not ordinarily follow the event in family proceedings, so each party usually pays his/her own costs. He was at pains to stress that the costs order he decided to make was based entirely on litigation conduct, and did not reflect the fact that Mr and Mrs H had broadly succeeded in the litigation.   On the basis of schedules of costs he concluded that F’s litigation conduct had increased the costs to Mr and Mrs H by £10,000 (it is surprising perhaps it was not a lot more) and made an Order that the father contribute this sum.  F had not paid either M or Mr and Mrs H any child support for T.

Why did the judge make this order about T’s future?

Cobb J noted that Mr and Mrs H had provided continuous good quality care for T and had such a warm and close relationship with her that they said that they would seriously consider uprooting themselves from their home to be close to T, in the event that the decision of the Court was that she live with her father.  Their home provided T with a strong association with her mother.  Mr and Mrs H had also been crucial in promoting the relationship between T and her father.

He cited other court judgements about the importance of social and psychological parenting, as well as biological ties. Whilst F had much to offer, he could continue to offer that without the need to uproot T, who was likely to thrive more readily with Mr and Mrs H, not least as they understood more fully her need to grieve her dead mother and to promote contact with F.

Leave to appeal was refused.  Once again, the High Court has demonstrated that protracted litigation over the welfare of children in private law must come to an end, not least for the sake of the child. With that in mind, Cobb J made a detailed order for defined and incremental periods of time that T should spend with F, in Cornwall and in Suffolk.

This article was originally published in The Barrister.

Henry Hood

Hunters incorporating May, May & Merrimans