Law and Human Rights
Since my son died we aren't allowed to see our grandchildren
A retired judge went to court over contact with his family. The hearing descended into a shouting match. He explains why the system is flawed
Since my son's death from cancer, his widow has refused all contact with their two children. We did not want to lose touch with them so an application was made to the family court.
The proceedings were brought by my wife, two daughters and me (“the family”) against the mother.
This was a new experience because I am a retired judge who has always seen litigation from the other end of the telescope, although never in a family court.
It was as dispiriting as it was depressing. In this account I remain anonymous because to identify me would be to identify my grandchildren.
We had to make an application for leave, even as grandparents, to make an application for contact. The Children Act 1989 demands this.
Deputy District Judge McHardy, who heard the application, was impressive. He considered the matter, granted leave and fixed a date for a hearing six months later. This was an unsatisfactory delay but apparently unavoidable, partly because of the heavy caseload of the Children and Family Court Advisory and Support Service (Cafcass) officer. A case management hearing was fixed for May, shortly before the trial. The Cafcass report was prepared in good time. It was a thorough and careful report with clear and sensible recommendations.
The hearing took place before a senior family judge in London. He was to deal with the trial. By this stage the mother was representing herself. It was unfortunate that the judge did not seem to have read the documentation before coming into court. When it was eventually brought to him he observed that a retired judge was one of the applicants. I confess that the only light relief I found was when he said he'd never heard of me.
Our counsel unsuccessfully sought to have the hearing adjourned for further attempts at conciliation and for the Cafcass officer to make a final report. Then the mother, as was her right, addressed the judge. It is clearly right that a litigant in person should be given considerable latitude but there are limits. Allegations against the family, no doubt believed to be true by the mother were made at some length. Some were of a most painful kind, such as those relating to events immediately before my son's death.
I was quite unable to see their relevance, as I had believed in my naivety, that it was the welfare of the children that was the concern of the court.
My wife is no longer young and the death of her beloved son has affected her more than I can say. She, and my two daughters, became very distressed. Only those who have suffered in the same way can fully understand this, but the need for sensitivity, I would have thought, should be blindingly obvious. The judge did not intervene.
Eventually he ordered that a list of “the issues” be given to him before the trial. These boiled down to the large number of disputes that had arisen between the family and the mother since my son's death. In the main, they were wholly irrelevant to the only real issue, namely, that of the welfare of the children.
At the conclusion of this hearing the family decided to withdraw the application. Not only was the emotionally strain too great but we also concluded that even if an order for contact were made it would lead to turmoil of a kind that would be detrimental to the children.
A letter of explanation was sent to the court and to the mother. However, this was not to be the end. The judge sent what he called a “decision” indicating that he would consider the “proposal” to withdraw at the date fixed for the trial, which was in June.
Because I thought that the proceedings were at an end I decided to incur no further costs and deal with this myself. But beguiled by the judge's powers of persuasion at that hearing, we decided to reinstate and to proceed with the application.
This was a serious error. The Cafcass officer was called to give evidence. She reiterated her recommendation, which I think would be improper to disclose. She added that her report was an interim one and she needed more time to finalise it. This did not commend itself to the judge. Some of the questions then put to her by the mother were relevant but much of it amounted to a reprise of the allegations made at the case-management hearing. After about an hour and a half hours of this, and the palpable distress of my wife, the family decided it could take no more and left.
But this, incredibly, was not the end. That evening I received a phone call from the court asking us all to return as the judge wished “to tidy things up”.
I went with my daughters. We were subjected to a homily of a thoroughly patronising kind. When I asked if we could jettison all “the issues” and simply look at what was best for the children, I was told by the judge I was being “simplistic”.
I was also told, not for the first time, that his experience in family matters was far greater than mine. That is true, although it was Oscar Wilde who said “experience is simply the name we give to our mistakes”. And so, yet again, we left, but not before the judge told me what he thought of me. It seemed only fair that I should say what I thought of him, which I did.
I do not write this article to criticise the judge. I have no doubt that he was doing his best. And I would like to thank the court staff for their efficiency and courtesy. I write it because I believe that the approach of the family court, in cases of this kind, is fundamentally flawed.
Contact applications do not lend themselves to the adversarial process. The welfare of the children should not involve a court battle between factions. A better, more civilised way must be found. And why should grandparents have to make an application for leave? We will never desert our son's children. If contact cannot be agreed a further application will be made.
The author has donated his fee for this article to the Royal Marsden Cancer Hospital
From The Times
September 24, 2009