Most of the tabloid press have reported extensively on this story of a mum who had her throat slit by her ex and who is said to face jail if she doesn’t write to him in prison. All of the reports I have seen identify the adults by name and give the general location of where the mother is or was living. Some of them identify the children by name, and some by photos. I find myself in the unusual position of linking to the Daily Mail coverage which is the only report I can find which does not identify the children by name or show their faces : “Mother who was tortured for seven hours and slashed across the throat in front of her sons by her ex-boyfriend is forced to write to him in prison and give him updates on his kids – or face jail herself”
This is a shocking case, and every report I have seen has extremely graphic pictures of the Mother’s injuries, and some photos of the children, in some instances unpixelated. Some reports show the Father and pictures of the Mother’s now faded scars. One shows the letters written by the Father to the children. I am surprised at the level of identification of the children and at the amount of local information, but I take it from the number of papers that have run with this that the proceedings must be concluded (the order described appears likely to be a final order) and that therefore there is (probably) no criminal offence in naming the children. However, although it seems unlikely that anything I do will make a blind bit of difference to these children in light of the extensive national coverage, apparently with the Mother’s consent – I prefer not to name them and not to link to an article naming them. I will not accept any comments on this post that attempt to do so. There are no reports on BAILII that I can identify as relating to this case.

Most of the reports seem to be very similar in terms and are drawn from an agency report, and the photos all appear to be different images from the same photoshoot of mum and children.

I thought that it would be useful to attempt to offer a view of what may have happened in this case and what the court’s approach usually is to this sort of scenario (where a father has committed some really heinous violence on a mother which the children have witnessed). It’s difficult to say too much, but there are a lot of incredulous, disgusted, and confused comments out there – so I’ll do my best to put it in some sort of context. Obviously, I’m doing my best with the limited information available, but I’ve tried to make reasonable guesses at the sorts of scenarios that the published material point at. There may be others I haven’t thought of – and of course if the reports are inaccurate my assumptions based upon them may also be wrong.

So here’s a bit of background.

Whenever the court makes a child arrangements order (what we used to call a “Contact order”) it MUST attach something called a warning notice to the order. This says that if the order is breached the person breaching it can be punished through an enforcement order or imprisonment. So firstly, this wording, scary as it is is nothing out of the ordinary – it has always been the case that the court can send someone to prison for breaching it’s orders, but from 2006 Parliament legislated to say this warning must be placed on every contact (now child arrangements) order made as it was felt that contact orders were not being enforced as well as they ought to be.

Secondly, imprisonment for a breach of a contact order very rarely happens. It can only happen IF the other parent APPLIES to the court and PROVES beyond reasonable doubt that there was a breach AND that a sentence of imprisonment is justified (it rarely is if the Mother is caring for the children, particularly if the other parent is in prison and couldn’t take over care). In reality the prospect of this mother being sent to prison for failing to comply with the order seem to me to be pretty remote. However, that is not to say that it couldn’t happen – and it may still feel pretty threatening for the Mother to have read this in the order.

However, one report (that I’m not linking to) refers to “negotiated terms”, saying “The negotiated terms stated that she would have to send letters three times a year – at Easter, September and December”. That raises the possibility that this was an AGREED order, although the tenor of the article (and all the other articles) suggests it was not agreed. In particular various articles say the Mother “spent £3,000 on legal fees to fight the demand, but a court ruled that she would have to send three letters a year, updating Hughes on the children’s school progress, health, and emotional development” [my emphasis].

This is puzzling because it appears that the application was made in Jan 14, and the mother “was asked to go to court just before Easter [14]”. The impression is that there was only ever one hearing, yet I’d be surprised if she spent £3,000 on legal fees for a single hearing. The published letters begin in April 14, however this does not necessarily mean the order was made at this stage and even if it were it might have been a temporary order whilst the case proceeded. If the court were told that there were any disagreement about contact, particularly where there has been significant violence as in this case, I would expect the court to list a further hearing where the matter could be properly aired – and very probably to seek assistance from CAFCASS before that hearing. If the Mother did not agree to this contact and this was an order imposed at a first hearing anyway something has gone awry (in my partially informed opinion).

It is significant for me that nowhere in any article is there any suggestion of the Mother seeking to appeal the order, then or now. It is also apparent that the Mother has been complying with the order to date, and some reports suggest the childrens’ reaction has not been positive (unsurprisingly). I don’t know if the fact that the Mother has been “told to keep the [letters] in case the boys want to read them one day” is guidance she was offered at court when the order was made or that she has been offered subsequently, perhaps when she has reported her difficulties. It is the sort of thing that might be said at that point or at the point of making an application to vary, but other than that remark there seems to be no suggestion that she has or intends to return to court to vary the order.

It seems possible therefore that the order was agreed by the Mother at court when, because she was no longer represented, she did not appreciate the court’s powers of imprisonment in the case of breach, and would have had no idea what a warning notice was. Alternatively she may have agreed it on advice (i.e. that she was unlikely to successfully resist an order). Best practice would say that someone (the Judge / Magistrates / her lawyer) should have told this Mother about the warning notice before she agreed to the order, and certainly before she left court, but if she was unrepresented it would not surprise me if this had not happened – indeed the articles all suggest that the first point at which the Mother became aware of this risk was when she read the order. It is possible that the order was drawn up by the Father’s solicitors at the request of the court (this often happens because the court uses very long templates for its orders and doesn’t have time to draft orders between hearings) and sent out on a later date by post, leaving the Mother to open up and order and read the rather scary warning notice with no explanation. If the Mother did by then have solicitors they should have checked the order and sent her a letter explaining its terms.

There is a further possibility though. It might be that the Mother agreed to this indirect contact, and that there was no need for an order formalising that at all. It might be that her agreement was converted in the drafting to an order, or that it was recorded as a “recital” (record of an agreement) on the court order, but no ACTUAL Child Arrangements ORDER was made (the law says that an order should only be made if it would be better for the child than making no order – if it’s agreed it may be inappropriate to make an order). It is not unheard of for an order to be drafted from the template, containing no child arrangements order, but where the default wording is not properly edited to remove the (redundant) warning notice. That is to say it is possible that the warning notice is on the order in error and that there is no threat of prison at all. Obviously I don’t know whether that is so, but it is one of the possibilities IF the reference to “negotiated terms” is correct. If the Mother were represented this should have been picked up, but the reality is that the templates have caused some confusion since their introduction and some lawyers leave in redundant text when they should not.

There is a quite separate issue of course as to whether this mother, if she were at court as a litigant in person faced with an application of this sort, was in any proper position to “negotiate terms” with the Father’s lawyers, but one would hope that if such terms were agreed the court would have checked her consent was given on an informed basis and not under duress.

It isn’t immediately obvious why the Mother was  litigant in person at all. I would expect a Mother in these circumstances to qualify for legal aid on domestic violence grounds (see here) but if the Mother now has a new partner who works or is herself working she may not have qualified on means grounds.

Let’s assume for a moment that this order was imposed by the court without the Mother’s agreement. Why would that happen? Lots of people commenting on the articles are understandably struggling with that. Well, it is not a case (as reported) of “parental rights” but of the rights of the child to know about and maintain a relationship of some sort with both parents, even rubbish parents – except in the most exceptional of circumstances. There is now a statutory “presumption of parental involvement” but for various reasons that would not have applied in this case – however caselaw is clear that, regardless of the statutory presumption, a relationship with a parent can only be severed in exceptional circumstances. Knowing about the failings of our parents can be quite important in our understanding of our own identity. I anticipate that this order would have been made for “identity purposes” so that the children retain a link to their Father – and probably so that they are able to read those letters when young adults to help them make sense of what happened to them and their mum. Beyond that it is difficult to speculate – it is possible that the children were confused and upset at their father’s absence notwithstanding the awful events and needed some reassurance he was ok (seems counterintuitive I know but children are complex beasties). We really don’t have enough information about what the children recall, how close they were since the events, what explanations they had been given etc. Different children have a vast array of reactions to life events – it seems unlikely that they would be anything other than traumatised and frightened of their father but the court would fuller information upon which to judge that than we do.

Taking the order as it is described in the various articles, I note that the Mother is required to send the Father updates on the kids, that he is permitted to write 3 times per year, but there is no (or no reported) requirement for her to show the letters to the child. That might be an accurate reflection of the order or not – it is possible that requirement was left out precisely to allow the mother to exercise her judgment as the situation evolved – from the articles we don’t know if she would risk contempt for not showing them the letters. An order for a parent to provide updates is often provided not for the benefit of the offending parent but to give them a reasonable chance to write letters that will be personalised to the child in question, for example by mentioning their interests and achievements and asking about their likes and dislikes. The purpose of the updates from Mother to Father are therefore likely to help the Father write letters the children will want to read and respond to (not that that purpose will make the writing of them any easier for the Mother).

I would expect this matter to have been finalised after the preparation of a s7 report from either CAFCASS or the Local Authority. If I were representing the Mother I would probably want to know what impact this had had upon her and whether the idea of managing this contact would re-traumatise her to the point where it impacted on the kids. I’d consider seeking a psychological assessment of her if I thought she could not cope with it. I’d want to know how the kids were managing in understanding what had happened and where their dad was. I don’t know what if any of that happened, but the court most likely had a wealth of information that we do not, before imposing the order or approving the “negotiated terms”.