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THE FACTS

The applicant, Mr M.A., is a Moroccan national who was born in 1965 and lives in Stafford. He was represented before the Court by Miss J.A. Roberts, a solicitor practising in Stafford.

The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

In February 1996 the applicant married M.

On 2 August 1996 their daughter D. was born.

On 2 November 1998 the applicant and his wife separated.

On 11 November 1998 M. filed for divorce and a residence order in respect of D. There were problems with contact from the beginning. The mother made allegations that she feared that the applicant would abscond with D. to Morocco and that he was violent towards her.

On 27 November 1998 a County Court judge ordered interim residence with M. and issued an interim contact order.

On 30 June 1999 a County Court judge by consent ordered that the applicant be given contact at a supervised centre each Saturday.

On 12 July 1999 a County Court judge by consent ordered the mother to allow the applicant to have contact with his child each Saturday. A penal notice was attached.

A report of the child welfare officer dated 7 April 2000 noted the mother's implacable opposition to contact taking place.

On 12 April 2000 a judge again ordered that the mother allow the applicant to have contact with his child and attached a penal order. The applicant applied for her to be committed for contempt for failure to comply.

On 26 April 2000 a judge ordered that she be committed to prison for seven days, the order to be suspended until final hearing.

On 5 July 2000, the date fixed for final hearing, the judge adjourned the applications pending a report from a psychologist concerning the mother's allegations that the father represented a risk to her and the child. It does not appear that the psychologist received instructions until 4 September 2000.

On 17 October 2000 the judge consolidated the mother's application for a non-molestation order. The applicant withdrew another application for committal of the mother due to lack of contact.

In a report dated 2 February 2001, a consultant psychologist, after conducting interviews and assessments, noted that the mother's accounts of long-standing violence by the applicant were highly inconsistent, with no reference in her medical records to any alleged abuse/violence, that she scored highly on tests indicating stress and difficulty in establishing a parent-child bond, and that she presented many characteristics commensurate with a diagnosis of borderline personality disorder, with possible co-morbidity of histrionic personality disorder. She noted that, during a supervised contact session on 17 January 2001, the applicant had been responsive, sensitive and creative in his play with D., that he had a warm, caring relationship with her and that D. only grew anxious when she became aware that her mother was in the building. Tests showed that the applicant presented as a balanced, well-integrated man, without any particular problem in relation to anger management. She concluded that the applicant did not represent any threat to the child and that any fear of abduction was ill-founded, that the mother's fears in this respect were not realistic, and that there was no reason for the applicant's contact with D. to be supervised. She recommended that contact be increased to contexts outside a contact centre and that such regular contact with her father be actively promoted and facilitated. It was not, however, in D.'s interests for residence to be changed in favour of the applicant.

On 20 February 2001 the County Court judge found the mother in flagrant breach of contact orders and committed her to prison for fourteen days and ordered a section 37 report to be prepared by the local authority. After being sent to prison for one week, the mother began to comply with contact orders.

On 31 August 2001 the County Court judge found as a fact that the applicant, settled in the United Kingdom, had no intention of moving D. unlawfully to Morocco. He noted that the mother had constantly disobeyed contact orders from the court, while the section 37 report showed that D. enjoyed and benefited from contact. While he accepted that the mother was genuinely anxious about D., he ordered that contact be increased to weekly overnight stays. He made a final residence order in favour of the mother.

The mother failed to make D. available for the first three planned sessions, alleging continued concern that the applicant had not handed in his passport. Following another application for committal by the applicant, the mother complied, allowing two overnight contact visits at the applicant's home which took place in October 2001. D. then refused to attend further visits. The independent social worker reported that the mother was saying little to reassure D. or to encourage her to go, failing, in particular, to counter D.'s guilt about leaving her alone. An agreement was reached in court that the mother would make D. available for contact outside Hanley police station. An incident appears to have taken place on or around 1 December 2001 outside the police station, where D. witnessed her parents' hostility to each other and her mother crying. Contact visits were again discontinued, apparently as D. was objecting. The applicant issued a further notice of application for committal proceedings against the mother. On unspecified dates he also made further applications for contact and renewed applications for residence.

On 13 December 2001 the judge ordered the case to be transferred to the High Court.

On 22 February 2002 a High Court judge made directions for the proceedings, ordering indirect contact with the child by weekly cards and letters.

On 25 March 2002 the consultant psychologist recommended that the mother receive therapy to cope with her anxiety and parenting attitudes and that a CAFCASS (Children and Family Court Advisory and Support Service) officer be appointed to mediate and work constructively with the parties on D.'s behalf.

On 26 March 2002, a High Court judge drew up a schedule of contact and directed that a consultant family therapist be instructed to undertake systemic family therapy with the parties, with emphasis on contact issues. It was later reported that the therapist concerned stated that he was unable to undertake the work required and that there were difficulties in finding any other service that could.

Four attempts were made in April 2002 to facilitate contact between the applicant and D., but D. refused to accompany the independent social worker. No contact visits took place.

On 24 April 2002 the High Court appointed a guardian for the child.

On 5 July 2002 the independent social worker reported that D. was settled with her mother and had not suffered any emotional or psychological damage and that residence should not be changed. She noted that D. was refusing to see the applicant now and considered that attempts at enforcing direct contact would place her in danger of significant emotional harm, since she now viewed the applicant negatively and with fear. Any contact would have to be indirect for the near future.

On 9 July 2002 a High Court judge ordered indirect contact and a psychiatric report on the mother. A programme of indirect contact facilitated by the independent social worker commenced on 16 July 2002. This involved a session of one hour a fortnight in which the social worker met with D. and the mother and a letter from the applicant was delivered. Only two out of four planned sessions occurred due to the mother's unavailability. The independent social worker withdrew as she believed the mother was not committed.

On 26 September 2002 the psychiatrist reported that the mother was not suffering from any personality disorder or current depression, and that her current stress and anxiety symptoms would benefit from a course of anxiety/stress management, but that these did not pose a problem to her meeting D.'s needs.

In a report dated 9 October 2002, the consultant psychologist reported that D. now showed signs of having suffered emotional harm. She had now become aware that she was the centre of her parents' battle, was increasingly distressed by attempts to encourage contact and was demonstrating anxiety. She also noted that the applicant's position had become as entrenched as the mother's and he had shown limited insight into D.'s feelings. The applicant's relationship with D. had been seriously jeopardised by the incident in December 2001 and D.'s image of him was negative (angry, aggressive and potentially threatening and anxiety-provoking). Consequently, she was likely to continue to resist direct contact, and indirect contact was the only option, with a view to initiating possible interest in future direct contact.

On 17 October 2002 the High Court judge ordered fortnightly indirect contact to be facilitated by the guardian who reported that the parents cooperated with her proposals and suggestions.

On 8 January 2003 the guardian reported that D. was adamant that she did not wish to see the applicant, that her physical needs were well met by her mother but her emotional needs had not been met due to her mother's failure to promote regular and consistent contact, that D.'s responses to the attempts to promote contact demonstrated an escalation of her resistance to contact and increasing distress, and that it was apparent that she had internalised the feelings of hostility that the adults had displayed to each other and did not feel secure enough to see her father despite support and encouragement. The guardian did not consider that anything could be done in the short term to alleviate the level of anxiety and distrust displayed by D. when her father was discussed. She concluded that D. should remain with her mother, as any change in residence would cause her considerable disruption and further emotional harm.

On 18 February 2003 Mr Justice Munby considered the prospects of contact. He noted that the last contact visit had been in October 2001 and that the applicant had last seen D. in December 2001 and that it had to be said, clearly and firmly, that the blame for the present unhappy situation lay primarily, indeed overwhelmingly, at the mother's door. Reviewing the breakdown of visits in October 2001, he found that the mother had sabotaged the sessions which had previously been successful. It was obvious that, even if she was not actively poisoning D.'s mind, she was wholly unable to conceal her own antipathy and hostility to the idea of contact. As regards the incident on 1 December 2001, where the applicant had behaved most foolishly, he considered that it was the mother's constant sabotage of contact that had goaded him beyond endurance and that she had behaved no better than he had. The mother had also conspicuously failed to cooperate in the indirect contact attempts, professing herself unable to persuade D. to write even the shortest card to her father: the judge did not think that she had even tried. It was also clear that D. had regularly been subjected to negative statements about her father by the mother and other members of the mother's family. He concluded that D. had suffered emotional harm due to the mother's failure to allow her to develop a proper relationship with the applicant but, although she had not yet suffered significant harm, she probably would in the future. This harm was caused by the mother. He had no doubt that D.'s best interests required her to go on living with her mother but at the same time enjoying a proper and rewarding relationship with her father.

“It is a tragedy for D. that she cannot have such a relationship with her father. If she does not have a proper relationship with her father – a father who it is obvious has much to offer his daughter and whose company she thoroughly enjoys – then D. is likely to grow up as a damaged child, a damaged adolescent and, in time, a damaged adult.

There are times when a judge ... has to speak plainly, indeed brutally, if his message is to be understood. The tragedy which lies ahead for D. is that mother may, although of course without any intention of doing so, end up wrecking her daughter's life. The tragedy which lies ahead for mother is that the time may come when D. blames mother for denying her a relationship with her father and turns against mother ...”

He decided to adjourn the applicant's application for residence so that one final attempt could be made to establish contact, both indirect and direct. He warned the mother that, if she still could not facilitate contact, the applicant would inevitably restore his application for residence and she should realise that there was a very real chance that the court would be compelled to remove D. from her care, as in the applicant's care D. would be able to continue to see both her parents. He considered that the mother had shown herself largely impervious to the threat of imprisonment and appeared willing to pay that price; however, her avowed fear of losing her daughter would become a horrible reality if she did not promote contact in the future. He ordered that the burden be lifted from D.'s shoulders; that D. be informed that contact would take place and that a tightly structured approach to contact leading to direct contact within three months be adopted. The parties agreed to the detailed order, which provided for review in March 2003.

The case was reviewed by the court on 17 March 2003.

On 15 April 2003 the guardian reported on the progress of work. The mother, despite initial reluctance, had attended eight sessions on the subject of contact and had been following advice on reintroducing the subject of contact with D., delivering gifts and reading out letters, and maintaining a firm approach when D. was negative. A first direct contact visit was planned to take place in the presence of the mother and her new partner and other children in a bowling alley. However, on the day concerned, 3 May 2003, when the social worker arrived, D. remained in her room, screaming and refusing to dress or come down. The contact was cancelled. D. later refused to see the social worker.

On 23 June 2003 the case was reviewed by the court. Mr Justice Munby ordered that the applicant's application for contact and restored application for residence be listed for final hearing in November 2003.

In her report of 27 October 2003, the guardian reported that D. had refused to talk to her but that it was clear that she was distressed when the issue of contact was raised and that she had stated that she did not wish to have contact. She was unable to make any further suggestions regarding the promoting of contact and was of the view that the mother had, this time, attempted to promote contact to the best of her ability. She did not recommend any change in residence.

On 10 and 11 November 2003 the case came back before Mr Justice Munby, who reviewed the attempts at renewing contact and approved a consent order. He had no doubt that the guardian and the independent social worker had done everything possible to resume contact, though it was now impossible to say if they could have achieved more if they had been brought in earlier. The situation was now all too clear and the experts were unanimous that there was no alternative to leaving D. with the mother. As a result, he noted that the applicant “bravely but realistically” withdrew his applications for residence and direct contact. He approved the consent order drawn up by the parties, which contained, inter alia, the mother's undertaking to promote a positive image of the applicant and provided for indirect contact as specified in the appendix and allowed such direct contact as might be later agreed between the parties or as the child wished. He made remarks urging the applicant to persevere with indirect contact as in time D. would need him, warning the mother that she had not won a victory but stored up terrible problems for herself in the future. He agreed that the applicant, who had nothing to reproach himself for, was entitled to feel let down by the system and stated that there were lessons to be learned from this: in the public interest he intended to give a judgment dealing with the wider aspects.

His full judgment on this occasion does not appear to have been delivered until 16 February 2004.

On 1 April 2004 Mr Justice Munby issued a further judgment dealing with the wider issues of procedure highlighted by the case. In his judgment of thirty-three pages, he noted that the case could be seen as exemplifying everything that was wrong with the system. He handed down this judgment in public, with names anonymised, to deal with the failings revealed.

Among other things he emphasised the importance that both parents, residential and non-residential, played in a child's life and acknowledged that there were cases where mothers deliberately alienated children to prevent contact taking place and where the court process had not proved successful in dealing with them. While mothers and fathers had equal rights before the courts, there were, however, more non-resident fathers than non-resident mothers and when the system failed, as it did, it was disproportionately fathers not mothers who found themselves, as well as the children, victims of that failure. In this case, he criticised: the length of the proceedings (five years); the large number of hearings and astonishing number of different judges involved (namely 43 hearings by 16 different judges); the vast bulk of evidence filed over the years, more than 950 pages, a ceaseless proliferation of paper which was the product of delay, as with every adjournment fresh reports were needed in order to keep the case file up to date; the fact that the final hearing for residence was listed on four different occasions in 1999 but adjourned, and that five dates in 2000 and 2001 were also adjourned until the final order was made on 31 August 2001; the great delay in the courts making findings in relation to the mother's wholly groundless allegations which could have been made earlier and some allegations of domestic violence which were never subject to any findings; the great delay in seeking expert assistance other than the court welfare officer (the independent social worker had not been involved until 31 August 2001, the guardian on 26 March 2002); and the characteristic judicial response when difficulties with contact emerged to reduce the amount of contact and replace direct contact with indirect contact. He summarised the problems as being:

(i)  the appalling delays in the court system, exacerbated by the absence of any judicial continuity, seemingly endless directions hearings, the lack of any overall timetable and the failure of the court to adhere to such timetable as had been set;

(ii)  the court's failure to get to grips with the mother's (groundless) allegations; and

(iii)  the court's failure to get to grips with the mother's defiance of its orders, and the court's failure to enforce its own orders.

After reviewing Strasbourg jurisprudence concerning the obligation on authorities to facilitate or enforce access arrangements, he considered that it could not be assumed that conventional domestic approaches met the standards required by Articles 6 and 8 of the Convention, in particular noting that it was almost impossible to see how a five-year timescale as in this case could be compatible with the Convention. He recommended taking steps to divert parents into a non-court process including parent education and contact-focused mediation, concentrating court time and resources on serious cases which required greater judicial input. He also recommended improving court procedures, including a fast-track procedure, the highest practical level of judicial continuity (not more than two judges at the most) and case management, the timetabling of cases to final hearing at the earliest practical stage, with not more than four intermediate hearings, to ensure conclusion within months rather than years and the fixing of a judicial strategy for each case. He also identified the immense value of children's guardians and the need for skilled social-work intervention, in particular an independent social worker, and recommended that allegations of misconduct be speedily investigated and resolved, not left to fester and cause continuing friction and dispute, and that once findings had been made, the questions were not to be reopened. Swift, efficient enforcement of court orders was also called for, with direct judicial supervision of contact and the imposition of imprisonment for one or several days could suffice to deter the mother without significantly impairing her ability to look after her children.

“There are no simple solutions. And it is idle to imagine that even the best system can overcome all problems. The bitter truth is that there will always be some contact cases so intractable that they will defeat even the best and most committed attempts of judges. But that is no reason for not taking steps – urgent steps – to improve the system as best we can.

Whether an improved system would have provided a better outcome for this child and this father is now almost impossible to know. Perhaps it would. Perhaps not. But they were denied the chance of a better outcome and for that they deserve a public, albeit necessarily anonymous, apology. We failed them. The system failed them.”

COMPLAINTS

The applicant complained under Article 6 of the Convention that the judicial process in his case was neither fair nor expeditious, that the orders made were ineffective and that no effective means of enforcement of contact existed. He pointed out that there were a total of 43 hearings conducted before 25 different judges, and that there were 8 adjournments of final hearings between 30 June 1999 and 11 November 2003.

The applicant complained under Article 8 of the Convention that the above also breached his right to family life. The passage of time during the judicial process cost the applicant the valuable formative years of D.'s life, led to his contact with D. being reduced to nil and denied him any meaningful family life with her.

The applicant complained under Article 14 of the Convention that the judicial process discriminated against him as a father without residence and was inherently biased towards the stance of the mother as there were repeated adjournments for inquiries into groundless allegations against the applicant, failures in reaching findings of fact on these allegations leading to further delays, failures to enforce contact although M.'s non-compliance was repeated and deliberate and as the mother, having residence, she was in a stronger position in relation to the provision of contact time and procedure.

THE LAW

The applicant complained that the judicial procedure in the case concerning residence and contact applications was unfair, ineffective and lacking in expedition, breached his right to respect for family life and disclosed discrimination against him as a non-residential father. The relevant provisions of the Convention provide:

Article 6

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

Article 8

“1.  Everyone has the right to respect for his ... family life ...

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 14

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Court notes that in the present case the applicant, who was found by relevant expert reports to be a competent and caring father of his daughter D., obtained numerous orders of the courts concerning contact. However, following the mother's repeated and wilful failure to comply with court orders and the resulting alienation of D., the court proceedings terminated with the applicant withdrawing his applications for residence and direct contact and accepting, by consent, a framework of indirect contact. The High Court judge issued several judgments heavily criticising the mother for bringing about this result which deprived D. of a relationship with her father, but also identifying at considerable length the defects in the procedures before the courts which contributed to the unjust and tragic conclusion to the case.

These unusual circumstances are such that the Court must examine whether the applicant can still claim to be a victim of a violation of the Convention under the terms of Article 34 (see S.B.C. v. the United Kingdom, no. 39360/98, §§ 19-20, 19 June 2001).

The Court reiterates that an individual can no longer claim to be a victim of a violation of the Convention when the national authorities have acknowledged, either expressly or in substance, the breach of the Convention and afforded redress (see Eckle v. Germany, judgment of 15 July 1982, Series A no. 51, pp. 30-31, § 66; for the application of this principle in the context of Article 6, see Lüdi v. Switzerland, judgment of 15 June 1992, Series A no. 238, p. 18, § 34, and Schlader v. Austria (dec.), no. 31093/96, 7 March 2000).

In the present case, although the High Court judge did not expressly state that there had been a breach of the applicant's Convention rights, his judgment analysed at some length the failures in the system disclosed in his case, namely the delays, lack of judicial continuity and the failure to enforce contact orders or to deal effectively with groundless allegations about the applicant's conduct. He referred to Strasbourg case-law under Articles 6 and 8 of the Convention, indicating his view that, measured against these standards, the domestic system was lacking, stating in particular that the delay of five years in the case was impossible to reconcile with the Convention. He also acknowledged that the failures in the system disproportionately impacted on fathers, who were most frequently the non-residential parent and dependent on the courts to enforce their rights against an intransigent mother. The judgment concluded in terms with the statement that the system had failed the applicant.

The Court is satisfied that the High Court judge in substance acknowledged that the applicant's Convention rights had been infringed.

As regards the second limb of the Eckle principle, namely, the nature of the redress, it will depend on the circumstances of the case. The applicant did not, in this case, make any claim for damages in the domestic courts and has not asked for any monetary compensation before this Court. It would therefore not appear that the applicant views monetary compensation as providing appropriate redress for the loss suffered by him in this case. The Court would note in any event that it would be open to him, if he did, to take proceedings in the courts under the Human Rights Act 1998, alleging a breach of his Convention rights and applying for damages. The High Court judge in this case did, however, issue the applicant with a public, if anonymised, apology for the system's failure to protect his rights. He also set out at considerable length an analysis of the defects shown in the system in this case and issued a list of recommendations for the future. The Court would observe that even if it were to continue the examination of this case it would be unable, as a supervisory international jurisdiction, to improve on this detailed and expert examination of domestic procedure.

Accordingly, notwithstanding the undoubtedly tragic events in this case and its considerable sympathy for the applicant, the Court finds that he can no longer in these circumstances claim to be a victim of a violation of the provisions of the Convention within the meaning of Article 34.

The application must therefore be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, by a majority,

Declares the application inadmissible.

M.A. v. THE UNITED KINGDOM DECISION


M.A. v. THE UNITED KINGDOM DECISION 


M.A. v. THE UNITED KINGDOM DECISION