Wednesday, 23 May 2012

NJDB v JEG: What the Supreme Court Didn't Say

The Supreme Court gave judgment in a parenting dispute on 23 May 2012 - but you wouldn't know it from reading the judgments, which focus entirely on procedure. This post comments on the important family law issues that the Supreme Court failed to address.

The Supreme Court doesn't hear many cases about the upbringing of children, so the tediously-named Scots case of NJDB v JEG [2012] UKSC 21 ought to have been quite exciting for us family lawyers. But it wasn't. It has its own kinds of interest, I suppose, but somehow the fundamentally important family law questions - about children's welfare, parental conflict, and parent-child relationships - were entirely sidelined in a judgment that ended up being all about procedure.

I don't want to be unfair to the Supreme Court Justices hearing this case. The relevant rules of appeal procedure limit appeals in this type of case to points of law, and so the findings of fact from the courts below were not open to question. But even with that in mind, there were some really very important issues which the Supreme Court could usefully have taken the opportunity to pass comment upon. So here's some of what the Supreme Court didn't say.

The Facts:

NJDB was a very long-running case. The 12-year-old child, whom I am going to call Sam (not his real name), was born from a fairly short-lived relationship between the parents. He had an older sister from the mother's previous relationship, and a younger brother from the mother's subsequent relationship. After the parents' relationship ended, Sam initially had staying contact with his dad; this was later affirmed by an interim court order, followed by what we South of the Border might call a consent order in 2004. (It was in fact a minute of agreement [MoA]: as I understand my Scots law, an MoA is filed with the court and is then legally binding.)

Although residential contact continued, disputes between the parents began almost at once and, in July 2004, the mother sought to retract the MoA and stop contact. The father, in response, tried to have her committed for contempt of court - so things were going well. Absurdly long court proceedings then began which - 6 years later! - eventually wound up in the Supreme Court. The end result was that the Supreme Court affirmed the first judge's decision, which involved not ordering any contact between Sam and his dad because i) there was so much conflict between the parents that it would harm Sam, and ii) Sam, now aged 12, did not want any contact. (I don't have any Scots statistics, but in England and Wales there were precisely 300 cases where that happened in 2010, out of 95,460applications [see Table 2.4 of this MoJ report] so Sam's is an exceptional case.)

Perhaps unsurprisingly, the Supreme Court spent much of its judgment criticising the process which had allowed a relatively simple case to take so long and to cost so much. (Even before reaching the Supreme Court, the case was estimated to have cost over £1m.) But in amongst the rather dry discussion that Lord Reed and Lord Hope offered in their judgments (Lady Hale, Lord Clarke and Lord Wilson agreeing with both), there were glimmers of the (for a family lawyer) rather more interesting aspects of this case that went by unmentioned.

The relevance of parental conflict:

When I was writing about the research evidence related to shared parenting arrangements a few weeks ago, one of the key messages that came from all that data was that kids do not do well in shared care if their parents are in a highly conflicted relationship. What about cases where shared residence isn't the issue, though? Sam's case wasn't about shared residence - it was about contact, but still for the judges below the Supreme Court the parental conflict was an important factor. The trial judge said this:

"If contact between [Sam] and [the father] were to occur, handovers would take place amid an atmosphere of hostility, assuming that [Sam] willingly attended for contact. ... It would probably distress him and involve him again in the continuing conflict between the parties. ... It is not in [Sam's] best interests that he is exposed to such conflict."

There is a hugely important questions here. What is the relevance of inter-parental conflict when assessing a contact case? And so what did the Supreme Court say about this question?

Well, nothing. The section that I quoted above was used to illustrate that the trial judge had understood that this case was about the welfare, or best interests, of Sam (which the father said the judge had failed to realise). But nothing - nothing - was said about the substance of whether or nor, and if so when, inter-parental conflict might in itself be so harmful to the child as to justify stopping all contact between the child and one parent.

Sam's views about the matter:

Again, I'm not sure about the Scots view, but in England and Wales many commentators think that the courts give rather inadequate weight to the views of children in court proceedings concerning them. Sam's views about contact with his dad were discussed by the trial judge:

"Were a contact order to be made, [Sam] would be unwilling to attend. It is probable that he would refuse to attend.".

When this was said, the boy was 9 years old. The question is how much weight could or should be placed on the views of a child that age about what he or she wants to do. This is part of a large debate in family law, of course, but this was an opportunity for the Supreme Court to give us some insight, but again we got nothing.

The effect on the child of losing contact:

Later in his judgment, the trial judge noted the possible effects on Sam of not having any contact with his father, in spite of the conflict issue and Sam's own apparent opposition to contact:

"There is the danger, of course, that if no contact order is made and [Sam] does not see his father now, there may be emotional consequences of a psychological nature as he reaches adolescence. He might resent his mother and consider her responsible for cutting his father out of his life..."

All credit to the trial judge for at least mentioning this issue, which again did not feature in the Supreme Court beyond a passing reference in para 22. There is also the small matter of the European Convention on Human Rights and, as I understand it, fairly clear European Court rulings saying that the state has a positive obligation to take reasonable steps to protect parent-child relationships as part of its obligation to respect people's private and family life. These were again mentioned in passing by Lord Reed in para 22 of the judgment as part of his Lordship's criticisms of the delay in Sam's case; but there was no significant engagement with this issue. Nor was there any discussion of the real chance that, given the state's complete failure to grasp the issues earlier on in proceeding, and the end result of the father being refused all contact with his son, the UK might end up paying damages if this case went to Strasbourg.


It's fair to say that, as it was presented to the Supreme Court, Sam's case wasn't really about these substantive family law issues. But parenting disputes about such (legally) mundane things as contact orders rarely justify the attention of the country's highest court, and it is very disappointing that, having got this one there at huge public expense (the case was legally aided), the Justices did not engage with these important issues. There is so much to say, and so much complication and scope for debate, that there would have been great value in hearing what the Justices - especially Lady Hale and Lord Wilson, the family law experts - thought about the matter. Instead they remained silent, deferring to the procedural questions on which the two Scots judges on the court had greater expertise. What an opportunity lost.

This post was amended to correct an error in the penultimate paragraph,
regarding the Supreme Court's discussion of the ECHR issue, on 25.5.12.