Williams J
The Judgment in this matter is being distributed on a strict understanding that in any report no person other than the attorneys (and any other person identified by name in the judgment itself) may be identified by name or location and in particular the anonymity of the child and the adult members of their family must be strictly preserved. IN THE GRAND COURT OF THE CAYMAN ISLANDS FAMILY DIVISION BETWEEN: AND Appearances: Before: Heard: T R The Petitioner in Person The Respondent in Person Ms. Laura Clemens, Guardian Ad Litem Ms. Lydia Watling, Court Welfare Officer Hon. Justice Richard Williams 26 October 2023 Ex Tempore Ruling: 26 October 2023 Perfected Ruling: 31 October 2023 HEADNOTE CAUSE NO. FAM 29 OF 2021 APPLICANT RESPONDENT Children Act (2012 Revision) -Application for an adjournment -Appointment of child psychologist - Directions to hearing EXTEMPORE JUDGMENT Introduction
The matter comes before me for a pre-trial review relating to the final stage of a part-heard substantive s. 10 Children Act hearing listed for 8 days and to commence from 20 November
That hearing relates to two children, RI, a 9-year-old female and RA, a 5 year-old male. 231031 Tv REx TemporeJudgment page 1 Page I of 15 FAM0029/2021 Page 1 of 15 2023-10-31 FAM0029/2021 Page 1 of 15 2023-10-31 FAM0029/2021 Page 1 of 15 2023-10-31 FAM0029/2021 Page 1 of 15 2023-10-31 Digitally signed by Advance Performance Exponents Inc Date: 2023.10.31 15:49:54 -05:00 Reason: Apex Certified Location: Apex
For ease of reference, with no discourtesy intended to the parties, I hereafter refer to the Petitioner as "T', to the Respondent as "R", to the eldest child as "RI" and to the youngest child as "RA" in this Judgment. The parties are both representing themselves and this has been the position since the comprehensive final children order submitted on 4 February 2022 (the Order"). At no time during these proceedings to date have I had concerns about them being able to adequately address the issues and present their respective cases whether that be by giving evidence, making submissions or cross examining. They are both intelligent individuals who work in highly regarded professions.
At today's hearing, T has made an oral application to vacate the substantive hearing to enable her to obtain legal representation/assistance. There is also now an issue about the instructing of a child psychologist to assess RI. Initially both pruties agreed that this instruction should occur not only due to these proceedings but to offer them guidance about any long-term therapeutic input that might be required for RI. T now objects to the instruction, raising fina11cial grounds, her concern about RI having to meet a110ther expert and with reference to the case of Re GB (Part 25 Application: Parental Alienation) [2023] EWFC 150. These proceedings have already been greatly delayed by the practicalities that have arisen when trying to instruct a child psychologist, including R disagreeing earlier in the year about the instruction of a psychologist who T had been happy to instruct.
In balance, despite her concerns about the absence of a child psychologist assessment, R feels that the heru-ing should proceed. A similar view is held by the Guardian.
T stated in an email sent on 25 October 2023 to the Welfare Officer, R, the Guardian and to the Judge's Personal Assistant that: "I have · been strongly advised that "given the manner in which the case is being conducted and the intervention of the Court" I need to get Counsel before proceeding. " She added: "I very strongly feel unable to represent my own interests or those of the children adequately at this point in proceedings. I am therefore in the process of seeking representation. I have been instructed to write to make the Honorable Judge aware and to apply for the aqjournment until I can be suitably represented. " 231031 Tv R Ex Tempore Judgment page I Page 2 of 15 FAM0029/2021 Page 2 of 15 2023-10-31 FAM0029/2021 Page 2 of 15 2023-10-31 FAM0029/2021 Page 2 of 15 2023-10-31 FAM0029/2021 Page 2 of 15 2023-10-31 FAM0029/2021 Page 2 of 15 2023-10-31 FAM0029/2021 Page 2 of 15 2023-10-31 Upon receiving the email, I instructed my Personal Assistant to inform the parties that today's case management hearing would be proceeding.
Yesterday evening, T filed a 19-page Position Statement. In that Statement T inappropriately introduced evidence, but she also ably made submissions and also reviewed some case law, legal texts and conventions. Apart from the evidence issue, which can be rectified by T putting the same detail in an affidavit, it was a well drafted and reasoned document. In the Statement T again commented: "I received legal advice on 18 October that due to the "manner that the case is being conducted in and the intervention of the court" I must instruct counsel. Due to the stress this is creating on my family and in turn myself, I no longer feel mentally able or suitably trained to represent my children's bests interests and keep them safe. I have reached out to a variety of independent parties who I hope can assist me pro bono due to my financial situation. At this stage I do not feel able to continue to self represent without counsel. "
At Court today, T mentioned that she had been seeing Legal Befrienders who she said had been advising and assisting her at different stages of these overly drawn-out proceedings. She also mentioned that legally qualified persons she knows are reaching out to lawyers who may be able to assist her pro bono. From what she said there is no certainty that she will obtain representation from these avenues no matter how much time is given to her. She mentioned that these proceedings have been very stressful for her, are affecting her mental health and that this has reached a stage where she feels she needs to be represented to continue to present her case. I note that R has had serious well documented mental health issues and that this has also been exasperated by these proceedings. Despite this, R has felt able to represent herself. There appears to be a position of 'equality of arms' when it comes to representation. I accept that these proceedings are stressful for all involved and that is but one of many compelling reasons why these proceedings must not be allowed to unnecessarily drag on. Background
When dealing with the present application to adjourn, it is important to consider it in the context of the chronology in this matter. A lot of this detail can be found in my ex-tempore ruling dated 31 August 2023, but I repeat some of that herein. When I have regard to the history of this matter, 231031 T v R Ex Tempore Judgment Page 3 of 15 FAM0029/2021 Page 3 of 15 2023-10-31 FAM0029/2021 Page 3 of 15 2023-10-31 FAM0029/2021 Page 3 of 15 2023-10-31 FAM0029/2021 Page 3 of 15 2023-10-31 FAM0029/2021 Page 3 of 15 2023-10-31 FAM0029/2021 Page 3 of 15 2023-10-31 FAM0029/2021 Page 3 of 15 2023-10-31 FAM0029/2021 Page 3 of 15 2023-10-31 I have regard to the Court's duty to minimise delay pursuant to the 'delay principle' set out at s.3(2) Children Act. The detrimental effect of delay in determining the question of contact becomes greater in cases where the children are having no contact with a parent.
For the purpose of today, the stmting point is the above-mentioned Order submitted by the parties on 4 February 2022 and reached after the pmties had attended mediation. The Order included a shm·ed residence provision and comprehensive contact provisions. The Order was intended to be a final order and was more detailed than one might ordinarily expect, likely because each party had concerns about how they could co-parent.
Regrettably, the arrangements set out in the Order soon broke down and, on 26 June 2022, T filed a Summons for a variation of the order, seeking that a no contact order for R be made and an order that R was to immediately have no future decision-making power in matters relating to the children. What was sought was in effect a discharge of the shared residence order and withdrawal of T's pm·ental responsibility. The orders sought in that Summons are the same orders that T still seeks at the continuing pmt heard hearing. T has since that time had ample opportunity to seek representation/reach out to a variety of independent parties to assist her concerning her / applications.
R filed a Cross-Summons seeking to enforce the contact terms in the Consent Order. This is similar to the order that she is now seeking and, of course, she has also had the opportunity to seek legal representation/assistance. Therefore, both parties have had the opportunity, ongoing since June 2022 (arotmd 16 months ago), to obtain legal representation in relation to their drawn- out applications which m·e still being considered by the Court.
Because of the issues that were then being raised, when the matter came before me on 22 July 2022, I made a referral for a Comt Welfare Officer's Report, which I directed to be filed no later than 30 September 2022. I reiterated that the consent contact order remained in place. I added that the Welfare Officer should be appointed promptly and that she could notify the Court if she felt that there was a need to vary that order prior to the final report being submitted. 231031 Tv REx TemporeJudgment Page 4 of 15 FAM0029/2021 Page 4 of 15 2023-10-31 FAM0029/2021 Page 4 of 15 2023-10-31 FAM0029/2021 Page 4 of 15 2023-10-31 FAM0029/2021 Page 4 of 15 2023-10-31 FAM0029/2021 Page 4 of 15 2023-10-31 FAM0029/2021 Page 4 of 15 2023-10-31 FAM0029/2021 Page 4 of 15 2023-10-31 FAM0029/2021 Page 4 of 15 2023-10-31 FAM0029/2021 Page 4 of 15 2023-10-31 FAM0029/2021 Page 4 of 15 2023-10-31
On 2 September 2022, T filed a further no contact Summons seeking a variation of the order and reiterated her wish for there to be an order for R to immediately have no future decision-making power in matters relating to the children. In the alternative, R stated that there could be a less disruptive contact schedule set up. That Summons also remains a live Summons before this Court which still requires determination.
On 5 October 2022, Ms. Watling, who is still the allocated Welfare Officer, reported that RI clearly expressed a wish for contact with both parents to be equal and fair and stated that it was clear that RI wanted both in her life. She recommended that the contact arrangement should be on alternate weeks with each parent.
As contact remained a live issue, at a case management hearing held on 7 October 2022, the Court gave directions for a four-day hearing to be listed on the first available date after 30 January 2023. Again, since that hearing, which was held over 12 months ago, both parties have had ample opportunity to seek representation or assistance for the scheduled substantive hearing.
At a hearing held on 12 December 2022, the matter came on for further case management and, due to issues that had arisen, it was decided that the hearing would require nine rather than four days. Consequently, the January hearing was vacated, and the substantive hearing was relisted for 7 March 2023. The loss of the January hearing was regrettable as the new hearing was to be over seven months after the first mention hearing had come on before me. Again, both parties had the opportunity to obtain representation for the newly listed substantive hearing.
At a pre-trial case management hearing held on 2 March 2023, the Welfare Officer recorded that RI expressed a desire to continue spending time with each parent in their respective households and that RI believed that RA wanted the same.
The substantive hearing then proceeded, it was an eleven-day hearing between the 7 to 24 March
Both parties were unrepresented, and they both fully argued and ably presented their cases. After the evidence was concluded the matter was adjourned for me to prepare a reserved Judgment. 231031 Tv R Ex Tempore Judgment Page 5 of 15 FAM0029/2021 Page 5 of 15 2023-10-31 FAM0029/2021 Page 5 of 15 2023-10-31 FAM0029/2021 Page 5 of 15 2023-10-31 FAM0029/2021 Page 5 of 15 2023-10-31 FAM0029/2021 Page 5 of 15 2023-10-31 FAM0029/2021 Page 5 of 15 2023-10-31 FAM0029/2021 Page 5 of 15 2023-10-31 FAM0029/2021 Page 5 of 15 2023-10-31 FAM0029/2021 Page 5 of 15 2023-10-31 FAM0029/2021 Page 5 of 15 2023-10-31 FAM0029/2021 Page 5 of 15 2023-10-31 FAM0029/2021 Page 5 of 15 2023-10-31
However, when I was working on the Judgment the parties submitted additional evidence which they both felt was relevant to the Court's determination. As a consequence of tbat, I stopped preparing my Judgment and the matter came on for a mention hearing on 5 May 2023 at which a futther two-day hearing was listed to enable the court to receive that additional evidence. Because of the developments set out in the evidence, I directed that a Welfare Officer, preferably Ms. Watling, be allocated to carry out an updated assessment and report in these proceedings.
The parties attended Coutt on 21 Jtme 2023 for the continuation of the pmt-heard substantive hearing at which the new evidence would be presented. However, it was evident that the parties had not been provided with a copy of a report concerning RI from the Wellness Centre. In addition, the Welfare Officer had markedly changed her previous contact recommendation to a no contact order. At the hearing, I explored with the Welfare Officer her reasons for the substantive change and, as I had some concerns about her rather generic replies, I mentioned to the parties at the hearing that I was considering whether it was in the children's best interests to be represented by a Guardian ad Litem. This suggestion appeared to be well received by both parties and, as the substantive part-heard hearing could not proceed, the matter was adjourned to a prompt mention hearing on 27 June 2023. It was evident at the hearing that R was now unhappy with how she felt the Welfare Officer was conducting her assessment and she questioned her independence. I made it very clear at the hearing that Ms. Watling would remain as the welfare officer in the case.
After the 21 June 2023 hearing, Ms. Clemens (who is also a member of the Family Bar) was appointed as the Guardian ad Litem. She attended the mention hearing held on 27 June 2023 and, at the time, it appeared that her appointment was well received by the parties.
At a further hearing held on 11 July 2023, in light of the content in the Welfare Officer's Report and after hearing from the Guardian, I suspended the Contact Order made in relation to RA. The intention was that it would be suspended until the next hearing, but with the possibility of there being such contact as may be recommended by the Guardian and Ms. Watling. As both the parties at the time had agreed that a child psychologist should be appointed to assist the Court and to provide guidance to the parents about long term therapeutic input to RI, it was hoped that an interim preliminary view from a psychologist might assist in determining whether contact could take place. At the hearing, directions were given to conclude the substantive pa1t-heard hearing at 231031 Tv R Ex Tempore Judgment Page 6 of 15 FAM0029/2021 Page 6 of 15 2023-10-31 FAM0029/2021 Page 6 of 15 2023-10-31 FAM0029/2021 Page 6 of 15 2023-10-31 FAM0029/2021 Page 6 of 15 2023-10-31 FAM0029/2021 Page 6 of 15 2023-10-31 FAM0029/2021 Page 6 of 15 2023-10-31 FAM0029/2021 Page 6 of 15 2023-10-31 FAM0029/2021 Page 6 of 15 2023-10-31 FAM0029/2021 Page 6 of 15 2023-10-31 FAM0029/2021 Page 6 of 15 2023-10-31 FAM0029/2021 Page 6 of 15 2023-10-31 FAM0029/2021 Page 6 of 15 2023-10-31 FAM0029/2021 Page 6 of 15 2023-10-31 FAM0029/2021 Page 6 of 15 2023-10-31 a five-day hearing to commence on 20 November 2023. A fnrther case management hearing was scheduled for 14 August 2023. Again, both parties had therefore had ample time in the over four- month period prior to the November hearing to obtain legal representation/assistance.
Within a week of the hearing, on 18 July 2023, Tissued a new Summons seeking emergency permission for the children to travel with her to New York for 14 days from 23 July 2023. Despite T surprisingly not mentioning this at the 11 July 2023 hearing, due to the urgency of the travel the Court, on very short notice, accommodated her by fixing a hearing. R was unhappy with the hearing being fixed in the above-mentioned manner and expressed a view that the Court was inappropriately continually accommodating such short notice applications for T whilst not determining her contact application.
When the matter came on before the Court for the mention hearing on 14 August 2023 fnrther directions were given to the fmal part of what is now an eight-day hearing still due to start on 20 November 2023. A pre-trial mention hearing was set for 3 November 2023. It is that mention hearing that has become the mention hearing which I am dealing with today. The 20 November date was changed by the Court solely to accommodate T's personal circumstances. Again, since 14 August 2023 (over two months ago and over three months before the November substantive hearing) both parties have had the opportunity to seek legal representation/assistance.
It became evident that, due to conditions being placed on her interaction with the children by T, the Guardian was encountering problems when trying to make the arrangements to enable her to perform her duties and conduct her assessment. As a consequence of that, I had to list a hearing, on my own motion, to deal with the issues being experienced by the Guardian. At a hearing held on 31 August 2023, it was apparent that T was questioning the Guardian's competence, impartiality, assessment procedures and professionalism. In a detailed Ex Tempore Ruling I found that, on the information then before me, T's views were not well founded, and I concluded that it was yet another example of one of these parents questioning the impartiality of a professional who was expressing a view contrary to that parent's wishes. I directed that T malce the children available for interview by the Guardian upon sufficient notice from the Guardian. I was left with the in1pression that the parties were getting on with instructing a psychologist in tin1e for the November hearing. I have been told by the Gum·dian at this hearing that, despite the 231031 TvREx TemporeJudgment Page 7 of 15 FAM0029/2021 Page 7 of 15 2023-10-31 FAM0029/2021 Page 7 of 15 2023-10-31 FAM0029/2021 Page 7 of 15 2023-10-31 FAM0029/2021 Page 7 of 15 2023-10-31 FAM0029/2021 Page 7 of 15 2023-10-31 FAM0029/2021 Page 7 of 15 2023-10-31 FAM0029/2021 Page 7 of 15 2023-10-31 FAM0029/2021 Page 7 of 15 2023-10-31 FAM0029/2021 Page 7 of 15 2023-10-31 FAM0029/2021 Page 7 of 15 2023-10-31 FAM0029/2021 Page 7 of 15 2023-10-31 FAM0029/2021 Page 7 of 15 2023-10-31 FAM0029/2021 Page 7 of 15 2023-10-31 FAM0029/2021 Page 7 of 15 2023-10-31 FAM0029/2021 Page 7 of 15 2023-10-31 FAM0029/2021 Page 7 of 15 2023-10-31 terms of the 31 August 2023 order, she is still encountering issues with T being uncooperative concerning making the children available for the assessment. I have not made any findings about that today, but this situation where T is said to be preventing the children from being able to see R as a part of the Guardian's assessment is another reason as to why the substantive hearing should not be further delayed.
At the hearing, T opposed the view of the Guardian that attempts should be made to reintroduce contact prior to the substantive hearing. At the very latest, on 31 August 2023, Twas aware of the views of the Guardian and about the content of the Court's Ex Tempore Ruling relating to the Guardian's role and assessment issues. Again, with that knowledge, both paities could have sought legal representation/assistance in time for the November part-heard hearing to be heard ahnost 3 months hence.
As already mentioned, the mention date which I am conducting today was initially scheduled to be held on 3 November 2023. However, on 11 October 2023, T wrote to the Court asking for that date to be changed due to her work commitments and she asked for the Court to move the mention hearing to a date outside of 1-3 November,
On 13 October 2023, following receipt of T's e1iiails and corresporidei1ce from the-Guardian (sent on 12 October 2023), in an email sent to the parties by my Personal Assistant, I noted my concerns that the child psychologist appeared not to have been instructed and I directed that the matter needed to be listed for a different urgent mention hearing on 20 October 2023. In the email, my concern was expressed that there was a clear difference of opinion between the Guai·dian and the Welfare Officer about contact, especially as the Guardian was now reporting that in her lengthy assessed contact session she had seen positive elements ai1d that unsupervised contact should be reintroduced before the substantive hearing. The parties were informed in the email from my Personal Assistant that, unlike the Welfare Officer, the Guardian is a party to these proceedings and as such she is entitled to not only present her evidence at the hearing, but she is also entitled to question the evidence of the Welfare Officer and other witnesses by exainination. l informed the paities that I had a concern that, due to the sensitivity of a Guardian's need to have an ongoing relationship when working with each parent, she might want to consider whether she felt it better to instruct an attorney to carry ont such an examination. I mentioned to 231031 Tv R Ex Tempore Judgment Page 8 of 15 FAM0029/2021 Page 8 of 15 2023-10-31 FAM0029/2021 Page 8 of 15 2023-10-31 FAM0029/2021 Page 8 of 15 2023-10-31 FAM0029/2021 Page 8 of 15 2023-10-31 FAM0029/2021 Page 8 of 15 2023-10-31 FAM0029/2021 Page 8 of 15 2023-10-31 FAM0029/2021 Page 8 of 15 2023-10-31 FAM0029/2021 Page 8 of 15 2023-10-31 FAM0029/2021 Page 8 of 15 2023-10-31 FAM0029/2021 Page 8 of 15 2023-10-31 FAM0029/2021 Page 8 of 15 2023-10-31 FAM0029/2021 Page 8 of 15 2023-10-31 FAM0029/2021 Page 8 of 15 2023-10-31 FAM0029/2021 Page 8 of 15 2023-10-31 FAM0029/2021 Page 8 of 15 2023-10-31 FAM0029/2021 Page 8 of 15 2023-10-31 FAM0029/2021 Page 8 of 15 2023-10-31 FAM0029/2021 Page 8 of 15 2023-10-31 the parties at today's hearing that I had the same concern about the Guardian's relationship with the Welfare Officer if she felt that she had to directly question her evidence at the hearing. It may be that this email is perceived by those advising T to be an "intervention" of the Court which requires this long-fixed substantive hearing to be vacated to enable T to seek legal representation/assistance. At today's hearing T stated that this email was not a reason for her seeking an adjournment. In light of my comments below, I do not accept that my observations, made with an eye on the sensitivity and awkwardness that may arise from a Guardian questioning a parent and Welfare Officer at a hearing, amounts to a basis for an adjournment in this very long running case. This is especially so when that hearing is still 25 days away. It appears that the Guardian may now be seeking legal representation, but she stated that she would proceed if that does not happen.
As a general observation, I have an ongoing concern that in public and private law children proceedings in the Cayman Islands, for reasons I do not understand, it appears to be the norm that where a child has a Guardian that child, unlike in England and Wales, does not have legal representation. Apart from the sensitivity of a Guardian examining a parent or social worker in Court, there may be situations where the Guardian's view is different to the child's and in such circumstances the child's attorney would be tasked with presenting the child's view whilst the Guardian would submit her conflicting evidence/recommendation.
On 13 October 2023, the Court received an email from Ms. Watling who said that she was on annual leave on 20 October and that she would be unable to attend the mention hearing fixed for that date. Ms. Watling then kindly provided her leave dates and, working arom1d those dates, the parties were informed that the case management hearing should be relisted to a day in the week of 23 October 2023. On 16 October 2023, the Court was informed that Tuesday and Friday of this week were not convenient for Ms. Watling. Therefore, the case was fixed for today's date, Thursday, 26 October 2023. This date was specifically fixed having regard to both Ms. Watling's and T's commitments.
So, when summing up the chronology, there remains a long-fixed part-heard substantive hearing for a further eight days in the Court list set aside from 20 November 2023 to conclude this matter. The purpose of that hearing is to primarily introduce evidence that has been produced after the 231031 Tv REx Tempore Judgment Page 9 of 15 FAM0029/2021 Page 9 of 15 2023-10-31 FAM0029/2021 Page 9 of 15 2023-10-31 FAM0029/2021 Page 9 of 15 2023-10-31 FAM0029/2021 Page 9 of 15 2023-10-31 FAM0029/2021 Page 9 of 15 2023-10-31 FAM0029/2021 Page 9 of 15 2023-10-31 FAM0029/2021 Page 9 of 15 2023-10-31 FAM0029/2021 Page 9 of 15 2023-10-31 FAM0029/2021 Page 9 of 15 2023-10-31 FAM0029/2021 Page 9 of 15 2023-10-31 FAM0029/2021 Page 9 of 15 2023-10-31 FAM0029/2021 Page 9 of 15 2023-10-31 FAM0029/2021 Page 9 of 15 2023-10-31 FAM0029/2021 Page 9 of 15 2023-10-31 FAM0029/2021 Page 9 of 15 2023-10-31 FAM0029/2021 Page 9 of 15 2023-10-31 FAM0029/2021 Page 9 of 15 2023-10-31 FAM0029/2021 Page 9 of 15 2023-10-31 FAM0029/2021 Page 9 of 15 2023-10-31 FAM0029/2021 Page 9 of 15 2023-10-31 first stage of the substantive hearing that concluded towards the end of March 2023. The November heru'ing was fixed as far back as 11 July 2023, although it was extended to eight days on 14 August 2023. Recent Events
The Guru·dian, in her abovementioned email sent two weeks ago to the Court and to the parties, provided updating information about her assessment. She noted that a contact visit for R with both children "went very well". She gave the impression that Rf was initially reluctant "but soon warmed up". She reported that: "Both children engaged positively and playfully with (R) ", and that "over the 4 hours that we were at (R's) home it was clear that they enjoyed their time with her very much. (RA) was quite affectionate with (R). (RI) was more reserved with her qffection than (RA), however that lessened over the course of the visit. Both children talked about what they would like to do next time, and (R) and (RI) discussed what (RI) would like R to make for dinner on that occasion. RA was quite sad and teary when it was time to depart. "
The Guardian was recommending that some unsupervised contact now be set up. She stated that when she reported what she termed to be the "the success of the visit" to Ms. Watling and suggested to her that contact be set up at least with RA and R, Ms. Watling informed-her that "the Department" was uot in agreement and that their recommendation for no contact remans as in Ms. Watling's previous report.
Despite the positive observations about contact in tl1e Guardian's email report, partly because there remained such a difference of opinion between tl1e Department and the Guardian, I formed a view, which I still hold, that it would be inappropriate for the Court to make any change to the current contact arrangement without concluding the evidence and making findings based on all of the evidence. This is a further reason why the final hearing must be able to proceed in a timely fashion and why ru1y further delay would not be in the children's best interests. The Guardian's observations in themselves, although not accepted by T, do not amount, when considering all the circumstances of this case requiring determination, to be a basis for yet again delaying the concluding of a hearing that has been part-heard since March 2023. 231031 T v R Ex Tempore Judgment Page 10 of 15 FAM0029/2021 Page 10 of 15 2023-10-31 FAM0029/2021 Page 10 of 15 2023-10-31 FAM0029/2021 Page 10 of 15 2023-10-31 FAM0029/2021 Page 10 of 15 2023-10-31 FAM0029/2021 Page 10 of 15 2023-10-31 FAM0029/2021 Page 10 of 15 2023-10-31 FAM0029/2021 Page 10 of 15 2023-10-31 FAM0029/2021 Page 10 of 15 2023-10-31 FAM0029/2021 Page 10 of 15 2023-10-31 FAM0029/2021 Page 10 of 15 2023-10-31 FAM0029/2021 Page 10 of 15 2023-10-31 FAM0029/2021 Page 10 of 15 2023-10-31 FAM0029/2021 Page 10 of 15 2023-10-31 FAM0029/2021 Page 10 of 15 2023-10-31 FAM0029/2021 Page 10 of 15 2023-10-31 FAM0029/2021 Page 10 of 15 2023-10-31 FAM0029/2021 Page 10 of 15 2023-10-31 FAM0029/2021 Page 10 of 15 2023-10-31 FAM0029/2021 Page 10 of 15 2023-10-31 FAM0029/2021 Page 10 of 15 2023-10-31 FAM0029/2021 Page 10 of 15 2023-10-31 FAM0029/2021 Page 10 of 15 2023-10-31
I note with interest that T states in the Position Statement that she has recently become engaged to her partner of two years, she has for the first time stated that she will be making an application to permanently remove the children from the jurisdiction as she wishes to relocate with her partner and to work in the USA. It is unclear how she will be able to live and work in the USA and what her immigration status there will be, but that is not a matter for the present proceedings. This move is something that R says has been planned by T for quite some time and R had stated that view at a few of the previous hearings. If T is being advised by those who are assisting her that the conclusion of the part-heard substantive hearing should be delayed to accommodate a later removal from the jurisdiction application to be made, then I do not accept that contention. At today's hearing T indicated that she was not seeking an adjournment for that reason. At this juncture, and having regard to the significant delay already, it is extremely important for the welfare of the children and the parents that the current proceedings are concluded. Then, with any findings made following the substantive November hearing and any order made, the Court and the parties will at a later date be in a better and more informed position to consider the merits of any removal application.
When today refusing to make an order vacating the 20 November 2023 hearing date, I have carefully considered T's written and oral submissions made in suppott of her application for an adjournment should be given. I have considered them in the context of the historical chronology as well as recent events. The fairly recent events include the Guardian's observations about contact and the fact that these conflict with T and the Welfare Officer's views and which Twill have to address at the hearing whilst unpresented. I am of the view that these parents are both capable of representing themselves, as they have ably been doing since the Order was made in February 2022. They were both able to adequately present their evidence and cross examine at the lengthy heru'ing held in March 2023, which involved sensitive allegations of domestic violence and health issues. However, if either party felt that they should be represented they have had runple opportunity to do so, including after the Guardian's involvement. The issues in this case have been cemented for many months and there is no recent development that has changed that. I note the fact that even if an attorney was to come on board at this late stage, the incredibly difficult task that he/she would have in presenting their client's case in a part-heard hearing without any knowledge of the voluminous oral evidence presented over many days at the March 2023 stage of this ongoing hearing. 231031 Tv R Ex Tempore Judgment Page 11 of 15 FAM0029/2021 Page 11 of 15 2023-10-31 FAM0029/2021 Page 11 of 15 2023-10-31 FAM0029/2021 Page 11 of 15 2023-10-31 FAM0029/2021 Page 11 of 15 2023-10-31 FAM0029/2021 Page 11 of 15 2023-10-31 FAM0029/2021 Page 11 of 15 2023-10-31 FAM0029/2021 Page 11 of 15 2023-10-31 FAM0029/2021 Page 11 of 15 2023-10-31 FAM0029/2021 Page 11 of 15 2023-10-31 FAM0029/2021 Page 11 of 15 2023-10-31 FAM0029/2021 Page 11 of 15 2023-10-31 FAM0029/2021 Page 11 of 15 2023-10-31 FAM0029/2021 Page 11 of 15 2023-10-31 FAM0029/2021 Page 11 of 15 2023-10-31 FAM0029/2021 Page 11 of 15 2023-10-31 FAM0029/2021 Page 11 of 15 2023-10-31 FAM0029/2021 Page 11 of 15 2023-10-31 FAM0029/2021 Page 11 of 15 2023-10-31 FAM0029/2021 Page 11 of 15 2023-10-31 FAM0029/2021 Page 11 of 15 2023-10-31 FAM0029/2021 Page 11 of 15 2023-10-31 FAM0029/2021 Page 11 of 15 2023-10-31 FAM0029/2021 Page 11 of 15 2023-10-31 FAM0029/2021 Page 11 of 15 2023-10-31
For completeness' sake and transparency reasons, I feel that I should share with the parties the fact that I have received a courteous email related to this case from the Director of Department of Children and Family Services ("DCFS") which was not copied into the other parties. In the email the Director stated: "Writing in reference to the above matter and the impact of court attendance required of Social Worker Lydia Watling. As of F' April, 2023 SW Watling has been assigned to the Child Scifeguarding Team, her duties require her to be available to respond to child abuse referrals received by MASH To date SW Watling's lengthy court appearances has impacted her availability to attend to her assigned child safeguarding matters some of which require on going follow up, witness statements and application to the Family Court to initiate Care proceedings for child who have to the placed in state care. Whilst I appreciate that SW Watling role in this complex case speaks to her duty to safeguard and act in the best interest of the child - the children on her caseload also requires her to do the same. SW Watling attendance in court for these lengthy proceedings have also created challenges for the Child Safeguarding team due to for SW Watling frequent court presence. SW Watling has informed that the following upcoming dates have been identified for her attendance. " The Director then set out the hearing dates and stated her concern that this would impact her team and her assigned cases and added that: "I am seeking your assistance in sharing my concerns with the presiding Justice with the intent DCFS and the Courts are able to reach an agreeable solution keeping in mind SW Watling as other children on her assigned caseload that requires her attention. "
I instructed my Personal Assistant to reply in the following terms: "I have read the email sent by the Director to Ms. Miller about this ongoing case which was not copied into the other parties. I will comment briefly and to ensure transparency I will draw the content of this email exchange to the attention of the parties at the hearing. 231031 Tv REx TemporeJudgment Page 12of15 FAM0029/2021 Page 12 of 15 2023-10-31 FAM0029/2021 Page 12 of 15 2023-10-31 FAM0029/2021 Page 12 of 15 2023-10-31 FAM0029/2021 Page 12 of 15 2023-10-31 FAM0029/2021 Page 12 of 15 2023-10-31 FAM0029/2021 Page 12 of 15 2023-10-31 FAM0029/2021 Page 12 of 15 2023-10-31 FAM0029/2021 Page 12 of 15 2023-10-31 FAM0029/2021 Page 12 of 15 2023-10-31 FAM0029/2021 Page 12 of 15 2023-10-31 FAM0029/2021 Page 12 of 15 2023-10-31 FAM0029/2021 Page 12 of 15 2023-10-31 FAM0029/2021 Page 12 of 15 2023-10-31 FAM0029/2021 Page 12 of 15 2023-10-31 FAM0029/2021 Page 12 of 15 2023-10-31 FAM0029/2021 Page 12 of 15 2023-10-31 FAM0029/2021 Page 12 of 15 2023-10-31 FAM0029/2021 Page 12 of 15 2023-10-31 FAM0029/2021 Page 12 of 15 2023-10-31 FAM0029/2021 Page 12 of 15 2023-10-31 FAM0029/2021 Page 12 of 15 2023-10-31 FAM0029/2021 Page 12 of 15 2023-10-31 FAM0029/2021 Page 12 of 15 2023-10-31 FAM0029/2021 Page 12 of 15 2023-10-31 FAM0029/2021 Page 12 of 15 2023-10-31 FAM0029/2021 Page 12 of 15 2023-10-31 Depending on what I am told at the mention hearing about expert medical evidence next week (26 October), for numerous reasons including the Delay Principle set out at s.3(2) Children Act, this protracted case is a firm fixture and the dates cannot be vacated Relevant events have occurred since the last hearing date and the Welfare Officer has not had the opportunity to address those with the Court. The DCFS/Court Welfare is expressing a firm view in this case which coriflicts with the position of the Guardian ad Litem and one parent. The Welfare Officer's recommendation(s) in this case is a core issue (more so than one might see in most other cases). This is also a case in which one of the parents is levelling a number of criticisms about the conduct of the Welfare Officer. In such circumstances, I had presumed (to ensure fairness to the officer) that the Welfare Officer and the Management at DCFS would wish her to be afforded the opportunity to be at Court to enable to hear what was being said about her conductlrecommendation(s), thereby leaving her in a position to then to address (if she deemed it appropriate) the representations made and evidence produced relating to her. " It would, of course, be inappropriate for me to correspond with the Director or meet with the Director, in the absence of the other parties, to discuss the nuances or case management of this or any ongoing case. However, the Director is invited to attend the mention hearing next week to enable her to make any representations in the presence of the other parties concerning the role of and attendance of the Welfare Officer in this case." The Appointment of a Child Psychologist
In my 31 August 2023 Ex Tempore Judgment, I said the following about the appointment of a child psychologist: "A farther issue has been raised before me this morning, and that relates to the long overdue instruction of a child psychologist. Both parties agree that a child psychologist is needed to report on the issues before the Court. It is hoped that they also recognise that a child psychologist is needed to not only address matters in these proceedings but also to address matters in relation to, especially RI's, long term emotional and mental health. " 231031 Tv R Ex Tempore Judgment Page 13 of 15 FAM0029/2021 Page 13 of 15 2023-10-31 FAM0029/2021 Page 13 of 15 2023-10-31 FAM0029/2021 Page 13 of 15 2023-10-31 FAM0029/2021 Page 13 of 15 2023-10-31 FAM0029/2021 Page 13 of 15 2023-10-31 FAM0029/2021 Page 13 of 15 2023-10-31 FAM0029/2021 Page 13 of 15 2023-10-31 FAM0029/2021 Page 13 of 15 2023-10-31 FAM0029/2021 Page 13 of 15 2023-10-31 FAM0029/2021 Page 13 of 15 2023-10-31 FAM0029/2021 Page 13 of 15 2023-10-31 FAM0029/2021 Page 13 of 15 2023-10-31 FAM0029/2021 Page 13 of 15 2023-10-31 FAM0029/2021 Page 13 of 15 2023-10-31 FAM0029/2021 Page 13 of 15 2023-10-31 FAM0029/2021 Page 13 of 15 2023-10-31 FAM0029/2021 Page 13 of 15 2023-10-31 FAM0029/2021 Page 13 of 15 2023-10-31 FAM0029/2021 Page 13 of 15 2023-10-31 FAM0029/2021 Page 13 of 15 2023-10-31 FAM0029/2021 Page 13 of 15 2023-10-31 FAM0029/2021 Page 13 of 15 2023-10-31 FAM0029/2021 Page 13 of 15 2023-10-31 FAM0029/2021 Page 13 of 15 2023-10-31 FAM0029/2021 Page 13 of 15 2023-10-31 FAM0029/2021 Page 13 of 15 2023-10-31 FAM0029/2021 Page 13 of 15 2023-10-31 FAM0029/2021 Page 13 of 15 2023-10-31 I then commented on the financial costs and how they might be met and then added: "Jf the parties still fail to reach agreement about the instruction of the psychologist and the payment, I will need to make a decision on my return to the jurisdiction in October as to whether the Court will proceed without a psychologist at the November hearing. Any party may apply for a mention hearing if that is an issue in October. Jf any party feels that the. Court has jurisdiction to consider and it is appropriate to bring an application concerning the payment of the psychologist, then they may of course issue a Summons supported by an Affidavit. As I am GW«JI from the jurisdiction from tomorrow for an extended period due to professional and personal commitments, and due to the fact that the issue in such a Summons would be limited to the discrete point of finances and not to the principle of whether there should be psychologist, I am satisfied that any Judge could hear that Summons in my absence. "
No application has been filed by any party concerning the child psychologist. If a child psychologist was to now be instructed, this would inevitably lead to the last stage of the substantive hearing having to be being yet again vacated. It appears that the patties are now not going to be in a position to instruct a child psychologist ru1d if the case was adjmrrned yet again for that to be done, I doubt that it would occur. R, Ms. Watling and the Guardian have all expressed regret at the lack of that evidence, whereas T does not think it is necessary. When balancing all of the factors, and having regard to the delay ru1d the impact that further delay would have on the welfare of the children, I reluctantly decide that the summonses before me should now be dealt with without that evidence. When I reach that conclusion I do not do not rely on the case law mentioned by T, i.e. Re GB and also Re C (Parental Alienation: Instruction of Expert) [2023] EWHC 345 (Frun). Those parental alienation cases deal with a situation where the expert was inappropriately being asked to determine the factual matrix of disputed allegations. This inclnded, for example, the expert being asked to: (i) express a view about the attitude of the parents towards the other and/or whether a parent supports the other parent having a relationship with a child; (ii) to comment upon each parent's ability to promote a health relationship between the children; and (iii) to determine whether a parent had deliberately tried to alienate the child. 231031 Tv R Ex Tempore Judgment Page 14 of 15 FAM0029/2021 Page 14 of 15 2023-10-31 FAM0029/2021 Page 14 of 15 2023-10-31 FAM0029/2021 Page 14 of 15 2023-10-31 FAM0029/2021 Page 14 of 15 2023-10-31 FAM0029/2021 Page 14 of 15 2023-10-31 FAM0029/2021 Page 14 of 15 2023-10-31 FAM0029/2021 Page 14 of 15 2023-10-31 FAM0029/2021 Page 14 of 15 2023-10-31 FAM0029/2021 Page 14 of 15 2023-10-31 FAM0029/2021 Page 14 of 15 2023-10-31 FAM0029/2021 Page 14 of 15 2023-10-31 FAM0029/2021 Page 14 of 15 2023-10-31 FAM0029/2021 Page 14 of 15 2023-10-31 FAM0029/2021 Page 14 of 15 2023-10-31 FAM0029/2021 Page 14 of 15 2023-10-31 FAM0029/2021 Page 14 of 15 2023-10-31 FAM0029/2021 Page 14 of 15 2023-10-31 FAM0029/2021 Page 14 of 15 2023-10-31 FAM0029/2021 Page 14 of 15 2023-10-31 FAM0029/2021 Page 14 of 15 2023-10-31 FAM0029/2021 Page 14 of 15 2023-10-31 FAM0029/2021 Page 14 of 15 2023-10-31 FAM0029/2021 Page 14 of 15 2023-10-31 FAM0029/2021 Page 14 of 15 2023-10-31 FAM0029/2021 Page 14 of 15 2023-10-31 FAM0029/2021 Page 14 of 15 2023-10-31 FAM0029/2021 Page 14 of 15 2023-10-31 FAM0029/2021 Page 14 of 15 2023-10-31 FAM0029/2021 Page 14 of 15 2023-10-31 FAM0029/2021 Page 14 of 15 2023-10-31 These were not appropriate matters to be placed in a letter of instruction for a child psychologist to consider as they are matters for the Court to determine. They would not have been the type of questions raised in any letter of in instruction to a child psychologist, if one had been found and agreed upon in this case. Directions
Having declined the application to vacate the November hearing and having ordered that it will proceed, after discussion with the parties I make the following directions: (i) If the parents seek to call any third-party witnesses, then they must file and serve their affidavits by or on 2 November 2023. Each parent is to inform the other parties (including the Guardian) at the same time whether they intend the oral evidence of that witness to be by Zoom and the other parties are to indicate whether they consent to that. (ii) The Welfare Officer and the Guardian are to file and serve their reports/evidence by or on 10 November 2023. (iii) The parents are to file and serve their own final affidavits by or on 17 November 2023 at 2.30p.m. (iv) No affidavits can be filed in breach of these directions without leave of the Court.
I suggest that at the November hearing the Welfare Officer gives her evidence first. In light of the email received from the Director at DCFS, and the observations made in my email reply to the Director set out above, it is a matter for the Welfare Officer as to whether she remains for the rest of the hearing. I also suggest that the Guardian then give her evidence. After the parents and their witnesses have given their evidence, the Guardian may be invited to comment further concerning her recommendation. If the Welfare Officer remains in Court throughout the hearing, then she may do the same. Tmi:::H~. JUSTICE RICHARD WILLIAMS JUDGEOFTHEGRANDCOURT 23103 I T v R Ex Tempore Judgment Page 15 of 15 FAM0029/2021 Page 15 of 15 2023-10-31 FAM0029/2021 Page 15 of 15 2023-10-31 FAM0029/2021 Page 15 of 15 2023-10-31 FAM0029/2021 Page 15 of 15 2023-10-31 FAM0029/2021 Page 15 of 15 2023-10-31 FAM0029/2021 Page 15 of 15 2023-10-31 FAM0029/2021 Page 15 of 15 2023-10-31 FAM0029/2021 Page 15 of 15 2023-10-31 FAM0029/2021 Page 15 of 15 2023-10-31 FAM0029/2021 Page 15 of 15 2023-10-31 FAM0029/2021 Page 15 of 15 2023-10-31 FAM0029/2021 Page 15 of 15 2023-10-31 FAM0029/2021 Page 15 of 15 2023-10-31 FAM0029/2021 Page 15 of 15 2023-10-31 FAM0029/2021 Page 15 of 15 2023-10-31 FAM0029/2021 Page 15 of 15 2023-10-31 FAM0029/2021 Page 15 of 15 2023-10-31 FAM0029/2021 Page 15 of 15 2023-10-31 FAM0029/2021 Page 15 of 15 2023-10-31 FAM0029/2021 Page 15 of 15 2023-10-31 FAM0029/2021 Page 15 of 15 2023-10-31 FAM0029/2021 Page 15 of 15 2023-10-31 FAM0029/2021 Page 15 of 15 2023-10-31 FAM0029/2021 Page 15 of 15 2023-10-31 FAM0029/2021 Page 15 of 15 2023-10-31 FAM0029/2021 Page 15 of 15 2023-10-31 FAM0029/2021 Page 15 of 15 2023-10-31 FAM0029/2021 Page 15 of 15 2023-10-31 FAM0029/2021 Page 15 of 15 2023-10-31 FAM0029/2021 Page 15 of 15 2023-10-31