Family Law Hub

H v Dent & Ors [2015] EWHC 2090 (Fam)

Applications by the father of a child, who was involved in private law proceedings, for committal orders against two members of the Cafcass team and the mother's solicitor for what he perceived to be their respective failings and breaches of court orders. Applications refused.

  • This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

    Case No: LE15P00507

    Neutral Citation Number: [2015] EWHC 2090 (Fam)

    IN THE HIGH COURT OF JUSTICE

    FAMILY DIVISION

    Birmingham Civil Justice Centre

    Date: 15/07/2015

    Before :

    MRS JUSTICE ROBERTS

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    Between :

    H (Applicant)

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    1. Dent

    2. McKay

    3. Harman (Respondents)

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    The Applicant in person supported by his McKenzie friends, Mr Graham and Mr Yalland

    Miss Karen Shuman instructed by CAFCASS Legal (solicitors for the first and second Defendants) and Nelson's Law (solicitors for the 3rd Defendant)

    Hearing dates: 7th, 8th and 9th July 2015

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    Judgment Mrs Justice Roberts :

    A. Introduction

    1. By applications dated 25 March 2015, the claimant ('H') applies for committal orders against three Defendants. Over the course of two days, I have been hearing argument about whether or not I should allow these applications to proceed to a full hearing or whether, as the Defendants contend, the applications should be struck out as an abuse of the court process; alternatively, that I should refuse H the permission he needs (in respect of two of his three applications) to proceed to a full hearing.

    2. The matter was last before the court on 8 June 2015 when Roderic Wood J made a raft of orders including a direction that the hearing before me was to be held in open court for the determination of :

    i. permission in respect of part of the application against the Second Defendant and the entire application against the Third Defendant under Chapter 4 of the Family Procedure Rules 2010;

    ii. whether the applications against all the Defendants, under Chapters 2 and 4 of the FPR 2010 should be struck out as an abuse of the process;

    iii. in the event that the committal applications continued, the hearing of those applications.

    3. The three Defendants have been represented before me, as they were before Roderic Wood J, by Miss Karen Shuman of counsel. In the event that the gateway/permission hearing were to result in the case proceeding to the next stage, the Defendants were to file and serve any evidence upon which they intended to rely immediately upon the determination of the preliminary issues. Miss Shuman indicated to me at an early stage of the hearing that, in this event, her clients would also want to issue a witness summons in respect of a third party, a solicitor who had previously represented H. Thus, the reality was, and is, that if these committal applications are to proceed, further dates will need to be listed for the next hearing.

    4. H is now a litigant in person although he has been assisted during the course of this hearing by two McKenzie friends. Mr Stuart Graham has been present in court with him throughout the last two days. On the second day of the hearing, I gave permission for Mr Adrian Yalland to assist in the presentation of closing legal argument on behalf of H.

    5. Since these are committal proceedings which affect the liberty of each of these three Defendants, I have been sitting in open court to hear the applications. Members of the public have been perfectly free to sit at the back of the court room to observe the proceedings, as indeed they have done. The only step which I have taken to place any limits on an entirely open and transparent judicial process is to make a reporting restriction order in relation to the publication of any information which might identify the child concerned.

    B. Background

    6. These committal applications arise out of events which unfolded during the course of family proceedings which are ongoing in this court. H is the father of a child (B) who is now 10 years old. He is a Bulgarian national who has lived in England for the past 12 years. In 2004, he had a relationship with B's mother. They separated before either knew that she was pregnant. The child was born the following year and, from the outset, H established a relationship with his daughter. For the next few years, there was regular contact between them. He describes himself as 'a model of fatherhood'. He states in his written evidence that he made the journey from London (where he lives) to Birmingham to see the child regularly, without fail, over a period of seven years for staying contact. He supported the child financially at a rate over and above that which he would otherwise be required to pay.

    7. For reasons which I do not need to explain for the purposes of this judgment, that contact broke down in the summer of 2013 when B was 8 years old. The child was manifesting some problems at school and appears to have said that she no longer wished to see her father. That fact was communicated to the father by the mother. H was devastated by this turn of events which he puts down to the influence of B's mother and maternal grandmother whom he suspected of wishing to marginalise him in B's life, if not exclude him from it altogether. I heard much over the course of this hearing about parental alienation syndrome and Mr Graham, H's McKenzie friend, told me at the outset of the hearing that he did much work for a well-known organisation called 'Families Need Fathers'. Indeed, it was apparent during the course of the hearing that a number of sympathisers or members of that organisation had attended court to listen to proceedings from the public gallery.

    8. When contact broke down in the summer of 2013, H enlisted the support of the local social services who produced a report. That core assessment report supported several of H's concerns about the underlying reasons for the difficulties in the parental dynamic and its impact upon B. A social worker had arranged a meeting between H and B in a local park in an attempt to re-start contact. It was unsuccessful. The analysis of the problem provided by the social worker was that B's loyalties were very much divided between her parents and she had been exposed to adult conversations within the home which were, in turn, impacting upon her relationship with her parents. It is a distressing account of events which are rehearsed far too often in the family courts. H was urged by social services to make an application to court and their file was closed.

    9. H duly issued his application in September 2013 in the local Family Court. The core assessment produced by social services was provided to Cafcass.

    10. The Children and Family Court Advisory and Support Service ('Cafcass') was set up in April 2001 under the provisions of Chapter II of the Criminal Justice and Court Services Act 2000 which brought together the family court services previously provided by the Family Court Welfare Service, the Guardian ad Litem Service and the Children's Division of the Official Solicitor's Office. It is a non-departmental public body accountable to the Secretary of State at the Ministry of Justice. It employs many specialist social workers who are trained, and experienced, in dealing with a wide range of issues. Cafcass is frequently brought into a family case to assist judges up and down the country in relation to difficulties encountered by children of separating parents. However, the organisation is independent of the courts, social services, education and health authorities and similar agencies.

    11. The First Defendant in these proceedings, Mr Jason Dent, is employed by Cafcass. He is the Second Defendant's supervisor. The Second Defendant is Ms Billie McKay. She is one of the Cafcass officers who was assigned to this case as it progressed through the Family Court. The Third Defendant, Ms Terri Harman, is the solicitor who represented B's mother in the proceedings.

    12. By his current applications H seeks orders committing all three Defendants to prison for what he perceives to be their respective failings and breaches of court orders as his case in relation to B has unfolded in the Family Court.

    13. In particular, his case against them is advanced from the foot of alleged breaches of two orders made in the Leicestershire Family Proceedings Court on 7 November 2013 ('the November 2013 order') and 25 February 2014 ('the February 2014 order').

    14. As Mr Graham was making his final submissions to me on behalf of H, it became apparent from the foot of a document which he produced that the thrust of the complaints made against these three Defendants is a general, but wide-ranging, attack upon the entire course of their dealings with this case since the November 2013 order was made. Although Mr Graham sought to criticise the First Defendant for his handling of the case from the very outset and before the first order was made on H's application, he accepted that the time line in terms of my evaluation of these applications can only run from November 2013.

    15. I shall need to return to the submissions made on H's behalf. At this stage, it is sufficient to note that, by the time Mr Yalland had made his final submissions to me on the law, it was apparent that there was no basis whatsoever upon which a committal application against the First Defendant, Mr Dent, could proceed and, on H's behalf, Mr Yalland sought permission to withdraw the committal application in respect of Mr Dent. I indicated that I would deal with that application as part of my judgment in relation to the entire case when I had considered the preliminary aspects of the case against the Second and Third Defendants on the permission / strike out aspects.

    C. My overall conclusions

    16. For reasons which I shall explain, I consider that there is no merit whatsoever in any of the three committal applications which are before the court. The application against the First Defendant, Mr Dent, has been withdrawn by H and, insofar as he needs the court's permission to withdraw that application, he has it subject only to any issues which might arise in relation to costs. I consider that the applications against the Second and Third Defendants have no legal basis whatsoever. They are, as the claimant accepts, procedurally flawed in fundamental respects and I decline to waive those procedural defects since I consider that justice and fairness require me to take that course for reasons which I shall explain. Given the clear objectives which lay at the heart of these applications, as those objectives were articulated to me by Mr Graham, I consider the applications constituted an abuse of the court process. H is denied the permission which he seeks to proceed to the next stage of these applications, the latter two of which will be struck out. Each of the Defendants is now relieved of any further concerns as to their future liberty and/or the potential impact of these proceedings upon their professional careers. Notwithstanding the fact that I have allowed H to withdraw his application against the First Defendant, Mr Dent, I am proposing to explain in my judgment why I take the view that the case against him is entirely without merit.

    D. Analysis and reasons

    17. Before embarking upon my analysis of this case and my reasons for the conclusions I have just expressed, I need to turn to the chronology of events as they unfolded over the course of 18 months between September 2013 and March 2015 when H issued his committal applications.

    The litigation chronology

    18. On 16 September 2013, H issued his application for a child arrangements order by which he sought direct contact with B and an order granting him parental responsibility for the child. That application was listed for directions on 7 November 2013.

    (1) Order made on 7 November 2013 : the first directions hearing

    19. Before the court on this occasion was the core assessment in relation to B which had been performed by social services from Leicestershire County Council. Both H and B's mother were legally represented at the hearing. The order made on that occasion provided as follows :-

    '1. Cafcass shall file and serve by 14th February 2014 a multi issue Section 7 report and shall assess immediately interim contact between the Applicant father and his daughter, [B], with the expectation that the Respondent mother …… will make [B] available for contact if Cafcass shall feel that contact is appropriate.

    2. This matter be listed for a review hearing on 25th February 2014 at 10am at Leicester Family Proceedings Court [address] with a time estimate of 15 minutes. Both parties and their legal representatives to be at Court 30 minutes before the hearing for the purpose of negotiation.'

    The order was drawn by the legal adviser sitting with the lay bench.

    20. Following that order, a Cafcass officer named Nicola Patterson was assigned to the case. She produced a report dated 19 February 2014. It was a full interim assessment running to some nine pages and it included Ms Patterson's evidence-based analysis of B's current situation, the impact which the proceedings were having on the child and, based upon her professional judgment, her recommendations to the court. She confirms that throughout her involvement, and specifically for the purposes of her report, she had kept well in mind the welfare checklist set out in section 1(3) of the Children Act 1989.

    21. Her recommendations to the court were as follows :-

    * a one off contact between H and B facilitated by Cafcass;

    * indirect contact in the form of letters on a two weekly basis;

    * Cafcass would complete an addendum report following a one off contact and would monitor the progress of indirect contact;

    * a further court review in 3 months' time.

    (2) Order made on 25 February 2014 : the review hearing

    22. Ms Patterson's report was before the court on the return date provided for in the November 2013 order. Again, both H and B's mother were legally represented. It is clear from the face of the lengthy order made on that occasion that, whilst the report had been filed five days later than the specified date, that slight delay had no impact upon the effectiveness of the hearing. A specific recital to the order recorded the fact that the court had read and considered the section 7 report prepared by Ms Patterson. Each of B's parents' solicitors made representations to the court. B's mother agreed to use her best endeavours to encourage their daughter to reply to letters sent to her by H. The directions made at the conclusion of that hearing were as follows (and I set them out verbatim) :-

    '1. Both the Applicant father, [H], and the Respondent mother, …, shall attend a separated parents information programme to be arranged through Relate.

    2. Cafcass shall file and serve, by 8th April 2014, an addendum report. For the purpose of preparing this report, the Respondent mother shall make [B] available for her to have such contact with the Applicant father as Cafcass may consider to be appropriate.

    3. There shall be fortnightly indirect contact between the Applicant father and his daughter, [B], via solicitors, whereby he shall send to her letters.

    4. Both parties are to file and serve their statements no later than 21 days before the final hearing.

    5. The Applicant father's solicitors shall file and serve a bundle of documents in accordance with the practice direction no later than 14 days before the final hearing.

    6. This matter shall be listed for a final hearing with a time estimate of 1 day on the first available date after 12th May 2014. The hearing shall take place at Loughborough Family Proceedings Court at [address]. Both parties and their legal advisers shall be at Court 30 minutes before the final hearing for the purposes of negotiations and discussions.

    7. The Cafcass officer who is assigned to complete the addendum report in paragraph 2 shall attend the final hearing. The Cafcass officer shall file their availability to attend such hearing by 4pm on 18th March 2014.'

    23. As is clear from paragraph 7 of the order, by the time of that hearing it had become clear that another Cafcass officer would be allocated to the case because of Ms Patterson's future unavailability. Mr Dent assigned the Second Defendant, Ms Billie McKay, to the case on 21 March 2014. Much is made by H of the delay between the February 2014 order and the date of Ms McKay's allocation to the case. I did not hear or read any evidence as to the reasons for that delay but it was less than a month.

    24. The next hearing concerning B was listed on 23 June 2014. That listing was confirmed by the court on 25 April 2014 after Ms McKay had filed her dates of availability, as she had been required to do by the February 2014 order.

    25. On 15 April 2014, some ten days earlier, Cafcass had facilitated a session of supervised contact between H and B at its Leicester office. It did not go well. As Ms McKay records in her subsequent report dated 30 May 2014,

    'Despite having ground rules in place, [B] came to the contact in a distressed state and as soon as she saw her father she started to shout at him and burst into tears. [B] had become so distressed that she had to be returned to her mother. [H] had bought presents for [B] but she refused to look at them.'

    26. Despite the contents of paragraph 3 of the February 2014 order, H had not persevered with the indirect contact he was given. The fortnightly letters had not been sent to B. He was to tell Ms McKay that he believed these letters would have done more harm than good. B had written him a letter, the contents of which he found upsetting. He told Ms McKay that he was not prepared to receive any more similar letters from his daughter. He feared, in any event, that any letters he had written would have been subject to the scrutiny of other members of the maternal family and he anticipated their negative reactions to his letters might well have been communicated to B.

    27. In the report which she had prepared for the final hearing, Ms McKay explained the steps she had taken to familiarise herself with the case and with B and her parents. Referring to Ms Patterson's previous report, she says in paragraph 2 of her report dated 30 May 2014 that she took the decision to interview H and B's mother herself since she wanted to provide the court with as much first hand evidence as possible. She was not able to arrange an interview with H until 15 April 2014 (i.e. some six days after the date when her report was due to be filed). It was on that day that the unsuccessful supervised contact had taken place in Cafcasss's Leicester office and no doubt the interview was timetabled to coincide with his trip from London on that occasion.

    28. Having set out comprehensively in her report her observations and impression of the underlying difficulties in the relationship between H and B, Ms McKay concluded in paragraphs 24 and 25 of her report:

    'Sadly I suspect that the more we attempt to pressure [B] into spending time with her father, the more she will become distressed and attach negative meanings to the relationship.

    I have tried to think what might assist this family under the new legislation and feel quite strongly that while it would be wrong to force [B] to spend time with her father, in order to rebuild this relationship I would respectfully ask the parties to consider a Child Arrangements Order for indirect contact arrangements alongside a Contact Monitoring Order so that Cafcass can support [H] with producing appropriate communications to his daughter.'

    29. In paragraph 10 of her analysis of the difficulties which the family had encountered, Ms McKay said this:-

    'I believe that [H] makes a fair point when he says that had Cafcass been quicker in reallocating the case less time would have elapsed before attempting to establish direct contact, thus allowing father and daughter to spend time together. However, I can also see that [H]'s response to [B]'s letter was not appropriate because [B] believes that her father accepted what she said in her letter. It is my opinion that [H] should have complied with the requirement to continue to send indirect communications and that [B's mother] should have shared these communications with [B].'

    30. Some ten or twelve days after the filing of that report, H filed a notice of acting in person. Mr Graham told me during the course of his submissions that he had simply exhausted his funds and could no longer afford to employ the services of his solicitor. Thus it was that, at the final hearing on 23 June 2014, H appeared as a litigant in person whilst the Third Defendant, Ms Harman, represented B's mother.

    (3) The final hearing on 23 June 2014 : the consent order

    31. H complains that when he attended court on 23 June 2014, he was put under much pressure by Ms Harman and Ms McKay. Unbeknown to either, he had been illicitly and covertly making tape recordings of what had transpired during the discussions outside court between them. He had made similar unauthorised tape recordings of his visit to Cafcass' offices on 15 April 2014 and his interview on that occasion with Ms McKay. He has since produced transcripts of these recorded exchanges, parts of which are reproduced in his written evidence in support of the committal applications. The USB stick which he has produced contains some 5 hours of clandestinely recorded material. Abbreviated versions of the transcripts and recordings have also been made available; counsel for the Defendants accepts that the transcripts are more or less accurate. H invited me to listen to the content of a USB stick which was handed up at the conclusion of submissions. I promised him that I would do so, and I have kept that promise. For reasons to which I shall come, it is not necessary for me to analyse in any more detail the substance of the exchanges which I have now heard.

    32. The hearing on 23 June 2014 resulted in a consent order. It was expressed to be a final order and it provided as follows :-

    i. B would live with her mother;

    ii. B's mother would make the child available for indirect contact which would take the form of monthly cards or letters from H together with additional indirect contact on special occasions such as on B's birthdays and at Christmas;

    iii. There would be a family assistance order supported by Cafcass which would continue to advise, assist and befriend both the child and her parents. That order was to remain in existence until 22 June 2015.

    iv. There was no requirement for any further Cafcass report.

    33. In support of his committal applications, H has filed two written statements. In the first, he sets out his complaints against the First and Second Defendants (i.e. the Cafcass officers) which I can summarise in this way. He describes 'acts of contempt due to the misfeasance and nonfeasances of (i) repeatedly failing to adhere to directions encapsulated within Orders made by a court after deliberating children matters subsequent 'cover-up' behaviours of misreporting to the court so as to (iv) conceal the worsening consequential and ongoing damage done to the child in question' [sic] (paragraph 2).

    34. These can be distilled into the following allegations :-

    * delays in the process of allocating the case gave B's mother and grandmother time to alienate the child from him;

    * no one in the Cafcass team recommended a transfer of the case up to a higher level of judicial management;

    * Mr Dent's 'refusal to allocate the case as per the Order of 7.11.2003' [sic] created a six month gap during which B's mother was able to influence her in a negative way. That was Ms McKay's conclusion as she had expressed it orally to him and she had given him an assurance that she would be saying as much to the court;

    * Ms McKay's report was 62 days late, requiring the 12.5.2014 listing to be pushed back to 23.6.2014; that report was 'significantly watered down' when it came;

    * Ms McKay's actions indicated overt bias against him; she chose to ignore the concerns expressed by the earlier core assessment report produced by social services about B's mother's state of mind;

    * at the final hearing both Ms McKay and Ms Harman focused on the issue of parental responsibility and not on contact. Both Defendants aligned themselves together in recommending that indirect contact and a Family Assistance Order would be the best way forward.

    35. There is a further issue which has aggrieved H. During her representations to the court (which also seem to have been illicitly recorded by the father), Ms Harman told the lay bench that an order for parental responsibility granted in this jurisdiction might enable him to make an application in the Bulgarian courts for passports and travel documents for B. He might also be able to apply 'under the Hague and Brussels legislation' for 'custody'.

    36. Of the entire process, H says this at paragraph 36 of his first written statement :-

    'The 23.6.14 Order for indirect contact and Family Assistance Order does not just kick the can down the road. It now balances near the edge of the sewer.'

    37. In his second written statement, which is directed primarily to his case against the Third Defendant, Ms Harman, he complains about her having taken advantage of him in the discussions which took place outside court on 23 June 2014. He contends that she took advantage not only of him but of the lay bench which had no legal qualifications. He alleges that she abused her position of trust to persuade him that the court was likely to dismiss his application for parental responsibility because of the implications it had for the child under international law. By means of duress and stress caused by this misleading information, she procured his consent to the order which was made without alerting the magistrates to the possibility of making a prohibited steps order to prevent his removal of B from the jurisdiction.

    38. These acts, in particular, are relied upon by H as constituting an interference with the course of justice for which she should be imprisoned by way of punishment.

    39. The final order having been made by consent on 23 June 2014, nothing further happened until 9 months later when H issued his committal applications against the three Defendants. There was no application by him to set aside the consent order for any of the reasons outlined above, despite the fact that I was told that he had sought further advice from his former solicitor during the intervening period. What he did do was to make a formal complaint to the Parliamentary Ombudsman. That complaint has apparently resulted in the issue of a draft confidential report which adds nothing further to the matters which I have to determine since I can only act on the evidence which is before the court.

    40. As to Ms McKay's continuing involvement in the weeks following the consent order, I have been shown an email which she sent to H on 27 July 2014, just over a month after the making of the Family Assistance Order. By that stage, H had made a formal complaint to Cafcass about Ms McKay. That complaint was dealt with internally and a full response was sent to H by Mr Mike Lisser who had overall responsibility for the Customer Services Team. In her email to H, Ms McKay explained that a decision had been taken to await the outcome of that complaint (which involved missing the 'July' round of indirect communication) before any decision was taken as to her continuing role in the case. Mr Dent, the First Defendant, had decided in the light of the outcome of the complaint that her professional conduct did not in any way justify the reallocation of the case to a different Cafcass officer. Once that decision had been taken, Ms McKay sent her email to H and set out in some detail the dates for the 'next steps'. She confirmed that she would meet with B following receipt of each of his letters and provide direct feedback to H and B's mother. She was also proposing to liaise closely with H to make suggestions as to how matters might be improved and/or moved along towards a reinstatement of direct contact. She proposed a mid-way review on or around the beginning of December 2014 with a final review in May 2015. That review was to inform the report she would be making to the court on the anniversary of the Family Assistance order. She sent H some documents and information about the scheme underpinning Family Assistance Orders and offered to do her best to answer any questions he might have over the course of the next few months.

    41. I have seen further emails passing between H and Ms McKay in October 2014 where he complains about the fact that she has shown some of his letters to B to the child's mother. He complains about the potential dangers involved in putting his letters 'in the 'Spot Light' and open to scorn'. He confirms in these emails that he had indeed agreed to indirect contact under the auspices of a Family Assistance Order but only on the basis that his letters were not subjected to scrutiny by extended members of B's maternal family.

    42. To complete the factual matrix of these applications, and – in particular – the involvement of the Second Defendant, on 1 June 2015, almost a full year after the original consent order and some 10 weeks after the issue of the committal applications, Ms McKay prepared an addendum and updated report for the court. That report was made in the context of the fresh application for a child arrangements order which H had by then made to the court. That application had been listed before HHJ Bellamy QC for a further hearing on 5 June 2015. The court had ordered the further report on 14 May 2015. It was produced by Ms McKay on time and in accordance with that order.

    43. In that report she confirmed that H had complied fully with all his obligations under the Family Assistance Order and had maintained indirect contact with B through letters and other communications. Ms McKay describes in her report how H had sent 'entirely appropriate, child centred' letters and the like, all of which had been completed 'with much care and attention'. Sadly, B had refused to allow those letters to be read to her showing, alternatively, indifference and anger in the face of her father's attempts to keep the relationship alive, albeit at a distance. Ms McKay speaks in her report of B's anxiety regarding the prospect of spending time with her father manifesting itself in 'frequent tummy aches and emotional outbursts suggesting that she is genuinely upset and worried by the prospect of seeing her father'. I can imagine how much sadness and frustration her reactions must have caused H, particularly in circumstances where he subjectively perceived B's mother and grandmother to be the cause of the continuing estrangement between them. He undoubtedly felt himself to be in an increasingly hopeless position as he watched his role as B's father pushed to the margins of her life. I can well understand that he was looking for someone to blame in circumstances where, as he saw it, the likelihood of this situation arising had been flagged up in the core assessment some two years previously.

    44. Ms McKay explained in her updating report that a range of tools had been used to engage B and encourage her to express her thoughts and feelings. However, her views had not changed and, in Ms McKay's opinion, she had not embellished them. She said,

    'The longer that there is no contact with the estranged parent the more fearful children can become and can exaggerate previous memories to protect themselves emotionally and void contact in the future. I would however state that [B] has remained consistent in her views and appears frightened and vulnerable precisely because she feels that professionals have not always listened to her.'

    45. The report concludes with Ms McKay's professional judgment that this was a case in which an expert assessment might be required since some of the issues could well fall outside those with which Cafcass was professionally equipped to deal.

    46. I mention this subsequent report and the continuing involvement of the Second Defendant, Ms McKay, because the committal application which relates to her refers in generically broad terms to 'her failures to act on court orders and for misleading the court in child matters'. It appears to be part of H's case against her (per Appendix 2 to his skeleton argument) that she failed 'to follow through on the spirit of the 23.6.14 order as anticipated' and that this amounted to 'a course of conduct tantamount to a sustained indirect contempt'. In the light of what I know she did in her capacity as the officer responsible for implementing the Family Assistance Order, I can find no sound evidential basis whatsoever to support even a prima facie case against Ms McKay on these or any other grounds.

    47. In relation to the Third Defendant, Ms Harman, H accuses her of acting in a manner which amounted to 'the abuse of her position as a trusted officer to act in what was effectively a quasi-judicial manner when persuading [H] towards a slanted outcome' by giving false legal advice in relation to H and Ms McKay in relation to international and/or European law and using deception and threats to achieve the outcome she sought for her client. This information I collect not from the face of the committal application but from a document called 'Appendix 3' which forms part of H's written submission to the court. He states :

    'The alleged direct contempt in the face of the court happened when Ms Harman achieved the Family assistance Order by deceiving the justices with the same false legal advice …, failed to inform them that such matters would be dealt in a higher court [sic], and deflecting them from the protective solution of a Prohibited Steps Order if the child were to travel abroad.

    Compounding the direct and indirect contempt is that Ms Harman is an expert in international law who has been contracted by the Ministry of Justice to work on Hague abduction cases. Her deception and contempt was not accidental.'

    48. He further relies on the illicitly obtained audio tapes which he contends amount to 'a persuasive professional dialogue steering the unrepresented father away from parental responsibility by claiming his national status precludes it and precludes direct contact to his daughter. Ms Harman misrepresents Hague and Brussels II legislation as a threat to the child rather than a protection.'

    49. The essence of H's complaint in this respect appears to be that, in circumstances where there was perceived to be an international element to the case and/or a suggestion that he might be a flight risk with the child, there was a positive obligation and duty on all the professionals involved in the case to bring this to the attention of the lay bench and require the transfer of the case to a higher judicial level. The absence of such an invitation amounts, on his case, to a fraud perpetrated on the court, and a deliberate fraud in which both the Second and Third Defendants were involved. He says that the Second and Third Defendants 'were now purposefully setting the Final Hearing up as an unfair trial in order to obtain a judicial seal on their own misconduct.'

    50. The issue in relation to European jurisprudence and Brussels II appears to have arisen in the context of previous concerns expressed by Ms Harman in relation to the legal standing in the Bulgarian courts of a domestic English order bestowing parental responsibility upon H. At one stage of the recorded exchanges outside court, Ms Harman commented that she had advised her client (B's mother) to ask H to provide an independent report for the English court in order to inform the court as to the legal implications of such an English order under Bulgarian law. There appears to be an issue as to whether or not H's former solicitor was ever asked to provide such a report. That solicitor, Mr Berridge, has since provided H with an email in which he confirms that such a request was never made.

    51. It seems to me that this catalogue of complaints against the Third Defendant, Ms Harman, completely ignores the fact that her professional duties lay with her own client, B's mother. She had no contractual relationship with H and at no time was her professional relationship with him impressed with any fiduciary or legal obligations. She had a professional obligation to act in the best interests of her client who, relying on the content of the Cafcass report, was unwilling to agree to an order for direct contact when such an order ran contrary to B's clearly expressed views. Ms Harman had an obligation not to mislead the court. There is no evidence before me that she did so, still less that she fraudulently or knowingly practised a deliberate deception on the court. The issue of the international report seems to me to be a bit of a red herring. H consented to the order made on 23 June 2014. I have no evidence before me which persuades me that his will was overborne on that occasion to the extent that he was unable to voice any concerns to the court had he wished to express them at that stage. It is a fact of life these days in family courts up and down the country that more and more parents find themselves advocating their own cases as litigants in person. He sought legal advice after that hearing but took no steps to bring the matter back to court.

    E. The Law

    The committal applications

    (i) Against the First Defendant

    52. As against Mr Dent, the First Defendant, in that part of the application form which asks what order an applicant is asking the court to make and why, H has said this :

    'For committal proceedings under Pt 37 Family Proceedings Rules against Mr Jason Dent for his offices' failures to act on court directions in two court orders made on 7.11.13 and 25.2.14'. [my emphasis]

    (ii) Against the Second Defendant

    53. As against Ms McKay, the Second Defendant, H provides these particulars :

    'For committal proceedings under Pt 37 Family Proceedings Rules against Ms McKay for her failures in duty to act on court orders and for misleading the court in child matters'. [my emphasis]

    (iii) Against the Third Defendant

    54. As against Ms Harman, the Third Defendant, H says this :

    'For committal proceedings under Pt 37 Family Proceedings Rules against Ms Harman for knowingly misleading a court deliberating child matters by providing false evidence; with-holding evidence; and misleading the Applicant with false legal advice in the knowledge that he had no legal counsel'. [my emphasis]

    55. Part 37 of the Family Procedure Rules 2010, supplemented by Practice Direction 37A, applies to these applications. As against the First and Second Defendants, H seeks committal orders under Chapter 2 (breach of a judgment, order or undertaking to do or abstain from doing an act). As against the Second and Third Defendant, he seeks committal orders under Chapter 4 (interference with the due administration of justice).

    56. In relation to the applications under Chapter 4, H requires the permission of the Court before he can proceed : FPR r 37.13(1) and (2). The requirements for such an application are set out in FPR r 37.15. Rule 37.15(1) provides as follows :-

    '37.15 Application for permission

    (1) The application for permission to make a committal application must be made using the Part 18 procedure, and the application notice must include or be accompanied by –

    (a) a detailed statement of the applicant's grounds for making the committal application; and

    (b) an affidavit setting out the facts and exhibiting all documents relied upon.'

    57. Guidance as to the types of conduct which fall within this classification for committal purposes are set out in the notes to the White Book 2015, Vol 2 at 3C,8-9. In essence:

    'The underlying concept is that a person may not interfere with the due administration of justice by thwarting or frustrating the necessarily elaborate processes or procedures which the law provides for the proper resolution of disputes and claims.'

    58. At this permission stage, the evidential burden is on H to establish a prima facie case of contempt. In order to discharge this burden, it is necessary to look, first, to the specific allegations upon which reliance is placed.

    59. In this context, the provisions of FPR r 37.10(3) are relevant. These provide that :-

    '37.10 How to make a committal application

    (1) A committal application is made by an application notice using the Part 18 procedure in the proceedings in which the judgment or order was made or the undertaking was given.

    (2) ……

    (3) The application notice must –

    (a) set out in full the grounds on which the committal application is made and must identify, separately and numerically, each alleged act of contempt including, if known, the date of each of the alleged acts; and

    (b) by one or more affidavits containing all the evidence relied upon.

    60. The notes to the rule lay particular stress upon the importance of two matters. First, the clear requirements of r 37.10(3)(a) must be adhered to. Since the criminal standard of proof applies to committal applications, the application notice which triggers the proceedings is the equivalent of an indictment in a criminal trial. Since the liberty of the defendant is potentially at stake, it is imperative (and an overriding requirement of any such application) that he or she knows precisely how the case against them is pleaded. Secondly, a line of distinction is drawn between the application itself (r 37.10(3)(a)) and the evidence in support of the application (r 37.10(3)(b)).

    61. It will be clear from the content of each of the three committal application notices as I have set them out above that none complies with r 37.10(3)(a). Whilst the court can, in appropriate circumstances, waive a procedural irregularity (see PD 37A para 13.2), it can only do so when it is satisfied that no injustice has been caused to the defendant by the defect.

    62. Here, the defects go to the very heart of the matter. Far from setting out in full the grounds on which each application against each Defendant is made with specific details of the alleged act or acts of contempt and the dates upon which they are said to have been committed, there is no specific information at all save for a series of very general allegations. I take the view that the notices as they stand would not provide any of these Defendants with the full particulars to which they are properly entitled. Serious allegations have been put before the court and H invites me to impose upon each a sentence of imprisonment which would have far-reaching and potentially devastating consequences in respect of their professional careers and livelihoods, quite apart from the deprivation of their personal liberty. Each has a right to know the case which is put against him or her.

    63. These serious procedural defects are now accepted by (or, at least, on behalf of) H. In my judgment, they are not cured by travelling to the content of his two affidavits, still less the written submissions which he has appended to his skeleton argument. By and large, his affidavits set out the chronological sequence of events which have occurred during the course of the litigation in the Family Court thus far. Interwoven into the fabric of the affidavits are some serious allegations of lying to the court, demonstrating bias, and flagrantly breaching court orders. As I said during the course of argument, it seemed to me that many of these allegations arise directly from a failure to read with any care the two orders from which the alleged breaches are said to flow. As Mr Graham accepted, in at least one instance, he (on H's behalf) has completely misread and misinterpreted an order which requires Cafcass to report and to 'assess immediately interim contact between the Applicant father and his daughter' as an order directing them to set up an immediate programme of face to face contact. One only needs to read to the end of the relevant paragraph to see that B was only to be made available for contact 'if Cafcass shall feel that contact is appropriate'.

    64. In Harmsworth v Harmsworth [1987] 1 WLR 1676, the Court of Appeal was considering a defective committal application in the context of an alleged breach or breaches of a non-molestation order made in family proceedings. The judge at first instance held that although the notice itself was defective, the wife's affidavit in support contained sufficient detail to enable the husband to understand the nature of the allegations which were being made against him. That part of the decision was upheld on appeal in relation to allegations that the husband had constantly telephoned the wife and followed her on foot or in his car. However, the Court of Appeal held that the judge's finding in relation to a serious assault which he found the husband to have perpetrated against the wife should not have been taken into account since no mention of it had appeared in the committal application. Nicholls LJ, who gave the leading judgment, set out the test to be applied in the context of a defective committal application. At page 1683, his lordship said this :-

    'So the test is, does the notice give the person alleged to be in contempt enough information to enable him to meet the charge ? In satisfying this test it is clear that in a suitable case if lengthy particulars are needed, they may be included in a schedule or other addendum either at the foot of the notice or attached to the notice so as to form part of the notice rather than being set out in the body of the notice itself. But a reference in the notice to a wholly separate document for particulars that ought to be in the notice seems to me to be quite a different matter. I do not see how such a reference can cure what otherwise would be a deficiency in the notice. As I read the Rules and as I understand the decision in Chiltern District Council v Keane, the Rules require that the notice itself must contain certain basic information. That information is required to be available to the respondent to the application from within the four corners of the notice itself. From the notice itself the person alleged to be in contempt should know with sufficient particularity what are the breaches alleged. A fortiori, in my view, where the document referred to is an affidavit, which does not set out particulars in an itemised form, but which leaves the respondent to the committal application to extract and cull for himself from an historical narrative in the affidavit relevant dates and times and so forth, and to work out for himself the precise number of breaches being alleged and the occasions on which they took place.'

    65. His lordship continued,

    'I turn to consider whether, on this footing, the test which I have mentioned is satisfied in this case. In applying that test the contents of the notice are to be read fairly and sensibly as they would be read by a reasonable person in the position of the alleged contemnor to whom the notice was addressed. Would such a person, having regard to the background against which the committal application is launched, be in any doubt as to the substance of the breaches alleged ?'

    66. During the course of Mr Graham's opening submissions to me, I struggled to identify with him the precise provisions of the two court orders of November 2013 and February 2014 in respect of which he was contending the Defendants (or any of them) were in breach. It is clear (and is accepted, now, by H) that Mr Dent was not in breach of either order. If there was any technical breach of paragraph 1 of the November 2013 order, that breach was Miss Patterson's in that her report was filed five days late. She filed a full report which was focused precisely upon the issues which she had been directed to address. The hearing on 25 February 2014 was an effective hearing and, in any event, she is not included within the ambit of the three committal applications. When I raised this with Mr Graham towards the end of his submissions on behalf of H, he said to me (perhaps tellingly), "We are not going for Nicola Patterson".

    67. In Re An Application by Gloucestershire County Council for the Committal to Prison of Matthew John Newman (No 1) [2014] EWHC 3136 (Fam), [2015] 1 FLR 1359, the President, Sir James Munby, considered the issue of procedural defects in a committal application in the context of FPR r 37.9(1) in family proceedings. In paragraph 5, he said,

    'Although in this case I was prepared to waive these procedural defects, I cannot emphasise too strongly the need for meticulous compliance with all the requirements of Part 37 and PD 37A. I might add, for the benefit of doubters, that this surely serves only to demonstrate the need for the family justice system to adopt, as I have been proposing, the use of standard forms of order available to all in readily accessible and user-friendly templates.'

    68. As to the standard of proof and the burden on the applicant local authority, the President said, at paragraph 9 :-

    'These being allegations of contempt, they require to be proved to the criminal standard of proof. Mr Newman has to prove nothing. The local authority must prove its case. In relation to each allegation I cannot find Mr Newman guilty unless I am satisfied so that I am sure or, as it is sometimes put, beyond reasonable doubt.'

    69. Here, I am still dealing with the preliminary aspects of the permission filter or gateway and thus I am not yet in the territory of considering whether or not that burden of proof is discharged against any or all of these Defendants. Nevertheless, the paragraph which I have quoted above spells out exactly the parameters of the obligations on an applicant to committal proceedings. The burden he or she has to discharge is a heavy one and it is for those reasons that an alleged contemnor is entitled to know precisely what allegations he or she is facing and the case which must be met.

    70. Before leaving the Gloucestershire case, I set out for completeness what the President said at paragraph 18. The committal application with which he was concerned related to an alleged breach of an injunction recorded in a court order. The principles are equally applicable to an alleged breach of an order which directs a person to do, or not to do, a certain act or to desist from pursuing a certain course of conduct.

    'An injunction cannot be enforced by committal unless it is in terms which are clear, precise and unambiguous. The general principle is clear and, indeed, long established. In my judgment a necessary application of the principle is that an order is not enforceable as an injunction unless it is directly and specifically addressed to the person or persons, or to the group or class of persons, who are intended to be bound by it. Those intended to be bound by an injunction must be clearly and unambiguously identified in the order. An injunction which fails that test … is unenforceable by committal. As I put it in Re HM at para [17], an order which is not directly addressed to those intended to be bound by it must fail as an injunction on grounds of unacceptable ambiguity.'

    71. Thus, I have reached the clear conclusion that, notwithstanding the (late) concession made by or on behalf of H, there is no legal basis whatsoever for the committal application in respect of the First Defendant, Mr Dent. Whether in his personal capacity as an employee with responsibility for the allocation of cases to individual Cafcass officers, or in his capacity as Ms McKay's line manager or supervisor, he has not breached any court order and I exonerate him completely from any suggestion that he has.

    72. It is an agreed fact that Ms McKay was not allocated as the officer responsible for the case after Ms Patterson's departure until 21 March 2014. I have already referred in my judgment to the meeting which she set up at Cafcass's Leicester offices on 15 April 2014, approximately one month after the case was assigned to her. In my view, she dealt entirely appropriately with that meeting when it became clear that B was unwilling to see her father. In an attempt to shore up his case against her, the documents produced by H as appendices to his skeleton argument contains a statement that, because her report to the court was filed late, the hearing listed for 12 May 2014 was vacated. This is not only an inaccurate statement; it is another fundamental failure on the part of Mr Graham and/or H to read properly the terms of the court order. Paragraph 6 of the order made on 25 February 2014 does not provide for a further court hearing on 12 May 2014. It provides for the matter to be listed for a final hearing on the first available date after 12 May 2014. The final listing of the case on 23 June 2014 was notified to the parties on 25 April 2014 and Ms McKay confirmed that she would be present to assist the court on that occasion.

    73. What then of the Second Defendant, Ms McKay ? The committal application does not specify the court orders in respect of which she is said to be in breach. The alleged breach or breaches (unparticularised) is or are said to be 'her failures in duty to act on court orders'.

    74. The thrust of H's complaints against Ms McKay can be collected from a document entitled 'Appendix 2' which was attached to his skeleton argument and presented to the court and the Defendants on the morning of the permission hearing. I have already ruled, and it is accepted on behalf of H, that (i) this document is not evidence, but submission; and (ii) it cannot remedy the procedural defects in the committal application notice. Nevertheless, I propose to deal with the gist of these complaints if not the substance (there is no evidence to substantiate them) if only to dispose fully of these applications. For these purposes, I refer to the chronological background of her involvement in the case as I have set it out in paragraphs 23 to 31 of my judgment.

    75. First, H complains that the imposition of a Family Assistance Order at the conclusion of the proceedings was an inappropriate outcome 'mismatched to the facts of the case and the child's welfare'. This outcome he lays at Ms McKay's feet as 'a direct contempt in the face of the court'.

    76. It was nothing of the sort and, again, to my mind demonstrates a further misunderstanding of the nature of the processes undertaken daily by those charged with exercising a judicial function within the Family Court as it sits at one level or another up and down the land on a daily basis. First, this was a consent order. As I have already said, had H felt that his agreement had been obtained as a result of undue pressure or duress (which I do not accept having listened to the illicitly obtained tape recordings of the exchanges which took place outside court), his remedy does not lie in committal applications against any of these Defendants but by way of an application to set aside the consent order. Secondly, the Family Court is not a rubber stamp whether it is exercising its jurisdiction in relation to children or financial proceedings. The role of the Cafcass officer is to report to the court and to make recommendations on the basis of the enquiries and investigations carried out 'on the ground' on behalf of the court. Even in circumstances where parties put before the court an agreement or consent order, no judge or lay bench is obliged to make the order without more. The welfare of the particular child will always be the court's paramount consideration in accordance with the welfare checklist in paragraph 1(3) of the Children Act 1989. The overriding objective set out in Part 1 of the Family Procedure Rules 2010 may mean that a court does not have to embark upon a full forensic investigation of each case where there is, or appears to be, a consensus as to the way forward. But it is difficult to imagine circumstances where a professional lay bench or a judge sitting in a Family Court would be prepared to sanction any order which it, he or she believed to be contrary to the best interests of a child simply because an invitation to do so was extended by the parties.

    77. In relation to the Third Defendant, Ms Harman, the committal application merely points to unspecified allegations of 'knowingly misleading a court deliberating child matters by providing false evidence; with-holding evidence [sic]; and misleading the Applicant with false legal advice in the knowledge that he had no legal counsel'. These matters I have addressed in paragraphs 47 to 51 of my judgment.

    78. However, whilst I have been able to unpick from several different sources of material put before me at least the gist or general tenor of the complaints raised by H, I have only been able to do so after gathering together a number of different documents, including those which were put in the slim bundle which accompanied H's skeleton argument. Much of that material was not available to the Defendants or their legal representatives until it was served on the morning of the hearing (or at best during the 24 hours before). In my judgment it is absolutely no answer to these glaring deficiencies for Mr Graham to point to the fact, as he does, that the Defendants are all intelligent professionals who should be deemed to understand the nature of the case advanced against them. That, it seems to me, is yet another failure on his part to understand the nature of these legal processes and the clear procedural rules which exist to ensure that those who find themselves on the receiving end of such potentially punitive outcomes receive an entirely fair and transparent hearing. That hearing can only proceed from the outset if there is against each of these Defendants a clear statement of the allegations made against them.

    79. Quite apart from the defective notice and clear breach of FPR 2010 r 37.10(3), there are other procedural defects in these applications.

    Absence of penal notices addressed to the Defendants

    80. Neither of the orders made in November 2013 and/or February 2014 is endorsed with a penal notice or any equivalent warning to these specific Defendants that a breach will place them at risk of contempt proceedings. This is a specific requirements of FPR 2010 r 37.9 :-

    '37.9 Requirement for a penal notice on judgments and orders

    (1) Subject to paragraph (2), a judgment or order to do or not to do an act may not be enforced under rule 37.4 unless there is prominently displayed, on the front of the copy of the judgment or order served in accordance with this Chapter, a warning to the person required to do or not to do the act in question that disobedience to the order would be a contempt of court punishable by imprisonment, a fine or sequestration of assets.

    81. A clear penal notice is an essential prerequisite to enforcement : see Re S-C (Contempt) [2010] 1 FLR 1478.

    82. Further, neither of those two orders in respect of which breaches are alleged are specifically addressed to the Defendants. Miss Shuman sought to persuade me that the directions given in the orders dated November 2013 and February 2014 do not constitute an order to do an act within the meaning of FPR 2010 r 37.4(1) and, as such, they are not capable of enforcement in any event by committal under Part 37. That submission was predicated upon an assumption that an order for the production of a report pursuant to section 7 of the Children Act 1989 was not 'an order to do an act' for the purposes of r 37.4(1)(a). In this context, she points to s 7(5) of the Children Act 1989 which imposes upon 'an officer of the Service' (in this case, Cafcass) a duty to comply with any request for a report under the section.

    83. Miss Shuman accepted candidly that this was not her best point and, with respect to her argument, I tend to agree. Her better point to my mind is that neither of these orders was specifically addressed to the first and/or second defendants. In the context of an application for their committal for an alleged breach of specific orders under Chapter 2 of Part 37, the Rules make it quite clear that an individual who is threatened with the loss of his or her liberty is entitled to have the consequences of a potential breach of specific obligations imposed upon them by court order brought to their attention as a necessary prerequisite to any enforcement action.

    84. There is a discretion vested in the court to waive any procedural irregularity : see PD37A, para 13.2. In order to engage this discretion, the court must be satisfied that no injustice has been caused to the respondent/defendant by the defect. I am not satisfied that the procedural irregularities to which I have referred can be cured by the exercise of my discretion in this case. In my judgment, they are fundamental and have the potential to operate to create substantial prejudice, unfairness and injustice to each of these Defendants in the presentation of their respective cases and their defence to the allegations raised against them.

    85. Mr Graham on behalf of H seeks to cure the defect which relates to the absence of any penal notices by pointing to FPR r 37.9(3)(a). That rule provides that, in the case of a section 8 order made under the Children Act 1989, the standard practice of endorsing a penal notice on a court order can be replaced by administrative act of a court officer incorporating a notice (at the request of any person entitled to enforce a child arrangements order) pointing out the consequences of disobedience. He points to the fact that the rule is permissive in its application and thus the absence of any such notice on the two orders to which I have referred is not of itself a procedural defect.

    86. In my judgment, this submission has no merit whatsoever. The procedure adopted in relation to notices on orders made in respect of arrangements for children does not remove or displace the fundamental requirement for a person in breach of such an order to be made aware of the potential consequences of that breach if those consequences involve punitive sanctions which the 'beneficiary' of the order seeks to invoke by application to the court. Further, it does not cure the defect of H's failure to identify the precise nature of the alleged breach(es) as against each of these Defendants. As I have already said, the November 2013 required Cafcass to file a section 7 report for the purposes of the hearing on 25 February 2014. The report was filed (although its author is not the subject of any committal application). The hearing on 24 February 2014 was effective.

    87. Paragraph 2 of the order of November 2014 required Cafcass to file an addendum report. Ms McKay was assigned as the case officer on 21 March 2014. She has explained the reasons why she was unable to file her report by 8 April 2014. It was filed on 30 May 2014 and the hearing on 23 June 2014 which led to the consent order was fully effective and informed by the contents of that report. Paragraph 3 of the February 2014 order provided for indirect contact between H and B by means of letters. That indirect contact took place, albeit unsatisfactorily from H's point of view for reasons which I have already explained. Ms McKay was directed by paragraph 7 to attend the final hearing. She did so and her full addendum report was before the court on that occasion.

    Permission – Interference with the due administration of justice

    88. Miss Shuman began her submissions to me in relation to this part of the case by suggesting that the hurdle which H had to surmount was that of an arguable case which was compliant with the overriding objective set out in FPR 2010 r 1.1. Under this principle, the court is required to deal justly with cases having regard to any welfare issues involved.

    89. FPR r 1.1(2) provides as follows :-

    '(2) Dealing with a case justly includes, so far as is practicable –

    (a) ensuring that it is dealt with expeditiously and fairly;

    (b) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;

    (c) ensuring that the parties are on an equal footing;

    (d) saving expense;

    (e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases.'

    90. Miss Shuman was unable to find any authority directly on point in the context of the FPR 2010 but she did subsequently take me to the case of KJM Superbikes Ltd v Hinton : Practice Note [2008] EWCA Civ 1280, [2009] 1 WLR 2406. That was a case which came before the Court of Appeal in circumstances where an application had been made by a litigant for permission to bring committal proceedings against a witness who was alleged to have made a deliberately false statement to the court in civil proceedings. Having considered broadly parallel provisions in the Civil Procedure Rules, the judge at first instance had refused permission on the basis they were a disproportionate response and not in the public interest.

    91. Delivering the leading judgment in the Court of Appeal, Moore-Bick LJ said this at page 2412 :-

    '16 Whenever the court is asked by a private litigant for permission to bring proceedings for contempt based on false statements allegedly made in a witness statement it should remind itself that the proceedings are public in nature and that ultimately the only question is whether it is in the public interest for such proceedings to be brought. However, when answering that question there are many factors that the court will need to consider. Among the foremost are the strength of the evidence tending to show not only that the statement in question was false but that it was known at the time to be false, the circumstances in which it was made, its significance having regard to the nature of the proceedings in which it was made, such evidence as there may be of the maker's state of mind, including his understanding of the likely effect of the statement and the use to which it was actually put in the proceedings. Factors such as these are likely to indicate whether the alleged contempt, if proved, is of sufficient gravity for there to be a public interest in taking proceedings in relation to it. In addition, the court will also wish to have regard to whether the proceedings would be likely to justify the resources that would have to be devoted to them.

    17 In my view the wider public interest would not be served if courts were to exercise the discretion too freely in favour of allowing proceedings of this kind to be pursued by private persons. There is an obvious need to guard carefully against the risk of allowing vindictive litigants to use such proceedings to harass persons against whom they have a grievance, whether justified or not, and although the rules do not prescribe the class of persons who may bring proceedings of this kind, the court will normally wish to be satisfied that the applicant was liable to be directly affected by the making of the statement in question before granting permission to bring proceedings in respect of it. Usually the applicant will be a party to the proceedings in which the statement was made, but I would not exclude the possibility that permission might be granted to someone other than a party if he was, or was liable to be, directly affected by it. In my view there is also a danger of reducing the usefulness of proceedings for contempt if they are pursued where the case is weak or the contempt, if proved, trivial. I would therefore echo the observation of Pumfrey J in the Kabushiki Kaisha Sony Computer case [2004] EWHC 1192 (Ch) at [16] that the court should exercise great caution before giving permission to bring proceedings. In my view it should not do so unless there is a strong case both that the statement in question was untrue and that the maker knew that it was untrue at the time he made it. All other relevant factors, including those to which I have referred, will then have to be taken into account in making the final decision.' [my emphasis]

    92. Miss Shuman suggests that these passages go beyond an obligation to demonstrate merely an arguable case for these purposes. I agree with her. In particular, I have weighed in this case the facts as I have found them to be in relation to the preliminary issue against the passages of Moore-Bick LJ's judgment which I have emphasised in bold type.

    93. In conjunction with the various factors identified in those passages, I have to bear in mind throughout the overriding objective set out in Part 1 of the FPR 2010. I bear in mind the numerous allegations made by H (which do not appear on the face of the committal application notices) unsupported by any substantial or credible evidence1. I take into account the very considerable delay which has occurred in bringing these proceedings. Mr Graham sought to persuade me that H had his eye 'taken off the ball' as a result of the other avenues he was pursuing against these Defendants (such as the internal complaints procedure he invoked within Cafcass, the complaint to the Parliamentary Ombudsman and the investigation which followed that complaint). I cannot ignore the fact that he has still failed to provide any credible explanation for the nine month delay before deciding to issue his committal applications. He has filed three committal applications which he accepts are wholly defective in terms of the procedural requirements of FPR 2010. He admits that his case against the First Defendant has no legal merit whatsoever.

    94. Mr Yalland made his final submissions on H's behalf in relation to the permission gateway insofar as it concerned allegations of interfering with the course of justice. If I may say so, he did so with courtesy and a surprising degree of insight into the very obvious deficiencies in H's case as they had emerged up to that point. He told me that H does not seek to punish the individuals involved in these proceedings; rather he seeks justice in the wider interest of the public at large. He submitted that Cafcass had been set up in such a way as to be immune from any culpability for delays and mistakes (a submission I am unable to accept). He said that it was indeed in the wider public interest, despite the acknowledged procedural irregularities in the applications, for the proceedings to move to the next stage of forensic investigation in order that I might conduct some form of wider ranging enquiry into whether or not a contempt of court had been established. He justified the existence of that public interest by reference to the inability, refusal or unwillingness of the Second and Third Defendants to obey court orders in a timely manner. Their inaction, he contended, had led to injustice to B and H. Their maladministration, he submitted, may well be the result of being under-resourced, under-staffed and/or the result of the imposition of tasks which were impossible to perform. These, he submitted, were issues for resolution by politicians. They should not deter me from allowing the applications to proceed to a full judicial determination.

    95. In this context, I am reminded of the remarks of the President in the Gloucestershire committal case. At page 1370, his lordship said this :-

    '[42] In Re J (Reporting Restriction: Internet: Video) [2013] EWHC 2694 (Fam), [2014] 1 FLR 523, a case that attracted much attention at the time, I articulated, not for the first time, two points which in my judgment are and must remain of fundamental, indeed, constitutional, importance.

    [43] The first (para [36]), was the recognition of 'the importance in a free society of parents who feel aggrieved at their experiences of the family justice system being able to express their views publicly about what they conceive to be failings on the part of individual judges or failings in the judicial system'. I added that the same goes, of course, for criticism of local authorities and others.

    [44] The second (para [38]), was the acknowledgement that the 'fear of … criticism, however justified that fear may be, and however unjustified the criticism, is, however, no t of itself a justification for prior restraint by injunction … even if the criticism is expressed in vigorous, trenchant or outspoken terms … or even in language which is crude, insulting and vulgar'. I added that a much more robust view must be taken today than previously of what ought rightly to be allowed to pass as permissible criticism, for 'Society is more tolerant today of strong or even offensive language'. I summarised the point (para [80]):

    'an injunction which cannot otherwise be justified is not to be granted because of the manner or style in which the material is being presented … nor to spare the blushes of those being attacked, however abusive and unjustified those attacks may be.'

    [45] I stand by every word of that. But there is a fundamental difference between ideas, views, opinions, comments or criticisms, however strongly or even offensively expressed, and harassment, intimidation, threats or menaces. The one is and must be jealously safeguarded; the other can legitimately be prevented.

    [46] The freedom of speech of those who criticise public officials or those exercising public functions, their right to criticise, is fundamental to any democratic society governed by the rule of law. Public officials and those exercising public functions must, in the public interest, endure criticism, however strongly expressed, unfair and unjustified that criticism may be. But there is no reason why public officials and those exercising public functions should have to endure harassment, intimidation, threats or menaces.'

    96. In terms of the absence of any particulars in the committal applications (a deficit which Mr Yalland candidly acknowledged), he accepted that it was not permissible for H to seek to rely on the contents of his affidavits as a remedy for those defects. Nonetheless, he sought to persuade me (as did Mr Graham) that the professional status of these Defendants collectively and separately was a defence to the absence of particularity. He relied on the fact that one of these Defendants was (and is) a solicitor and that the other two Defendants (or the one in respect of whom the case survived) was a sophisticated individual with access to legal advice. In his words, 'they should have been able to discern the case against them'.

    97. I reject that submission. The Rules are there for a purpose and they are of universal application. They do not discriminate between individuals, no matter what their professional status or access to advice. They exist to protect all litigants, no matter what their standing. I do not accept the submission relied on by both Mr Graham and Mr Yalland that the evidence justifies a waiver of the fundamental irregularities in compliance with the procedural rules governing all committal applications. For the most part, that 'evidence' is little more than assertion and/or submission.

    98. The fact that H remains steadfast in his belief that the recommendations in the Cafcass report prepared by Mc McKay were misplaced does not mean that she has committed 'a crime' (a specific submission made to me by Mr Yalland) or that she has been guilty of an interference with the due administration of justice. Mr Yalland's final invitation to the court was couched in these terms : I should stand back and take a broad view of the professional behaviour as I perceived it to be of each of the Second and Third Defendants and ask whether or not the permission threshold had been crossed.

    99. In reflecting on this case, I have done that. In my judgment, H has not crossed that threshold nor has he come close and, for those reasons, I have no hesitation in rejecting his application for permission to proceed against the Second and Third Defendants insofar as his case is formulated on the basis of Chapter 4 of the FPR 2010.

    Strike out : abuse of the process

    100. The court's power to strike out an application under FPR 2010 r 4.4 was considered in some detail by the Supreme Court in Wyatt v Vince [2015] UKSC 14. Judgment was handed down on 11 March 2015. That case concerned an application by a former wife for financial provision against her former husband but the rule applies to any statement of case made in family proceedings2.

    101. The relevant provisions follow :

    '4.4 Power to strike out a statement of case

    (1) Except in proceedings to which Parts 12 to14 apply, the court may strike out a statement of case if it appears to the court –

    (a) That the statement of case discloses no reasonable grounds for bringing or defending the application;

    (b) That the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings;

    (c) That there has been a failure to comply with a rule, practice direction or court order; or

    (d) ……. [not applicable].

    102. This rule has no parallel in any of the preceding rules which governed what we now refer to as 'family proceedings'. The High Court has always had an inherent jurisdiction to strike out proceedings which were considered to be an abuse of the court process but the power is now encapsulated on a statutory footing within the formal rules of procedure which govern family proceedings. Whilst FPR r 4.4 does not cover proceedings in relation to children, these are committal proceedings despite their genesis as proceedings relating to the arrangements for contact between H and B.

    103. In his leading judgment, Lord Wilson of Culworth considered at some length the meaning of the words 'no reasonable grounds' and 'an abuse of the court's process' as they appear in FPR 2010 r 4.4 as supplemented by PD4A which stipulates as follows :

    '2.1 The following are examples of cases where the court may conclude that an application falls within rule 4.4(1)(a) –

    (a) those which set out no facts indicating what the application is about;

    (b) those which are incoherent and make no sense;

    (c) those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable application against the respondent.'

    104. In paragraph 28 of the judgment, Lord Wilson confirmed that FPR 2010 r 1.2 required the court to seek to give effect to the overriding objective when it interprets any of the rules or exercises any power thereby given to it. As I have set out above, r 1.1(1) defines the overriding objective as enabling the court to deal justly with a case which, by r 1.1(2)(b) and (e), includes dealing with the case in ways proportionate to the nature of the issues and allotting to it an appropriate share of the court's resources. As Lord Wilson observed in paragraph 28 of his judgment,

    'Such should therefore be the Court's objective in determining whether the …. Statement of case falls foul of Rule 4.4(1)(a) and/or (b) and if so whether (being perhaps only nominally a separate question)to exercise its resultant discretion to strike it out.'

    105. For reasons which will be readily apparent from this judgment, the examples given in PD4A, paragraph 2.1 (a),(b) and (c) as circumstances appropriate for a strike out of an application are, in my considered judgment, entirely apposite in this case. Accordingly, even in circumstances where I have refused H permission to proceed through the gateway of this permission hearing to the next stage of his committal application, I have also reached the clear conclusion that these committal applications should be struck out pursuant to FPR 2010 r 4.4 as (a) disclosing no reasonable grounds for bringing the application; and (b) an abuse of the court's process, bearing in mind, as I do, the overriding objective in FPR 2010 r 1.1; and (c) the failure to comply with the requirements of FPR 2010 in the manner which I have identified in some detail in this judgment.

    106. I have been asked to consider whether, in these circumstances, I should consider whether it is appropriate to make a civil restraint order pursuant to FPR 2010 r 4.4(5)(b), having found these committal applications to be totally without merit.

    107. The light shining at the end of this tunnel for H is that the issue of his future relationship with his daughter is now firmly in the hands of HHJ Bellamy QC. It would be difficult to think of a safer pair of hands than those of this very experienced family judge. I have recorded in clear terms my findings that none of these three Defendants has breached the provisions of any court order. None is in contempt of court, and neither the Second nor Third Defendant has misled the court and/or interfered in any way with the due administration of justice. Because the litigation in relation to B is ongoing, I decline to make a civil restraint order at this stage. HHJ Bellamy QC will decide the future steps which need to be taken in these proceedings and the identity of those who should be charged with the responsibility for any further investigations which need to be undertaken by professionals with the experience and appropriate qualifications to undertake whatever work he deems appropriate.

    Order accordingly

    Notes

    1 In this context, I need only refer to the document which Mr Graham produced when he was making his final submissions to me in relation to the allegations relied on against each of these Defendants in the context of their individual and collective interference with the due administration of justice. That document is littered with allegations of maladministration ('allowing questionable reports to go through unchecked'; failing to check that a FAO was a reasonable outcome; criticising the Second Defendant for filing her report late notwithstanding an acceptance by Mr Yalland that she could not be criticised for the fact that she was only allocated to the case on 21 March 2014; accusing the Second Defendant of 'railroading' a solution which involved the granting of a FAO approved independently by the court; 'failing to remedy the omission over the course of 12 months; failing to engage with the FAO; failing to elevate the matter to a higher court on grounds, inter alia, of 'mental health issues'; and numerous (unparticularised) allegations of 'lies, threat(s), deception of a foreign LIP and tarnishing the reputation of another solicitor'; 'misleading the magistrates in court'.

    2 The rule does not apply to Parts 12 to 14 of the FPR 2010.

Judgment, published: 21/08/2015

Topics

See also

  • Application for costs by a solicitor, in a personal capacity, arising from committal applications against her and Cafcass officers involved in private law children proceedings. The applicant was awarded costs on an indemnity basis. Judgment, 29/07/2015, free

Items referring to this

  • The father was seeking to appeal 2 orders which related to covert recording allegedly supporting his contention that the mother was deliberately alienating the child against him. The President invited the Family Justice Council to consider the whole question of covert recording from a multi-disciplinary viewpoint. Judgment, 19/10/2017, free

Published: 21/08/2015

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