Having been chastised by the staff for our act of rebellion, we got out of the pool, our clothes clinging to us like swaddling cloth, applauded by Ron, Jennifer and Carla and other guests who were enjoying the prank.
Soon after, we exchanged contact details and I was alone for the last night, with only Brad for company. I was fine with this and vowed to get an early night, ready for travelling back to the UK in the morning, but after dinner I was asked to join an older couple who had struck up conversation whilst I was enjoying a last espresso on the terrace by the pool.
I did not want to be rude, so I agreed to a quick cognac and ended up spending several hours talking to them. The dreaded questions around children arose. However, this time they were the first to talk and shared their concerns about their granddaughter who was going through a custody battle in Wales. Ironically she was experiencing a very similar situation to mine, although there were no allegations of sexual abuse against the father. Having listened attentively for some time, I felt I had to share with them that they were not alone in facing deep injustice. It seemed the courts in Wales were no more fair to mothers than in London and what I had intended to be an early night, ended up being a lengthy exchange of sadness and grief.
Despite ending the holiday on a such a sad note, I did not regret it for one moment. Ischia was a warm hug at a time when I needed one so badly and it restored me enough to take my place back in this world that seemed so cruel and to face whatever struggles lay ahead.
Of course, Ron's words of warning would not leave me and would haunt my nights, but I knew that I had to go through the motions of doing the Appeal, regardless of his devastating omen.
I was spurred on by Christopher who remained in contact, even whilst I was on holiday. He seemed deeply affected by what had happened to us. He had sat in on many cases over the years but he told me that our Judge was the cruellest he had ever witnessed.
Any moments of doubt or indecision about going forward with yet another legal case, were quickly quashed by Christopher's own determination to go against the Judge who had destroyed our lives with a few pieces of paper. He had now taken an even greater personal interest in our case. He had been convinced that I would end up with some contact at the very least, but I had been left with only four phone calls a year - on a speaker-phone, monitored by R.
Unusually the Judge had asked Christopher's advice on how much phone contact I should get and I didn't discover this until much later when I applied for the transcript of the hearing. I had left the Court at the time when the subject of phone contact was discussed and I was shocked to discover afterwards that he had proposed four calls a year. To this day I will never understand why he did not suggest as many as possible. As a businessman, at least, he had to know that in any negotiation you always start from a position way beyond what you believe you can achieve. Furthermore the Guardian had recommended regular indirect contact between M and I and given that the Judge had taken his views as paramount in all other decisions, it was incredible that he asked for so little. I tackled him on this at a later date and he told me that he believed that had he asked for more, we would have ended up with nothing. I still do not accept his reasoning on this and it would be one of many things upon which we were to eventually disagree.
Christopher himself had been injuncted and as someone who was used to speaking out very publicly against terrible decisions of the Family Court, he now felt personally aggrieved. It was down to this, that he became so determined to take the case to Appeal with me - even offering to fund my application, knowing my father and I to be now seriously financially depleted. His generosity could not be faulted, nor the time and effort he put into my case, but I felt there were often inconsistencies between his public railing against injustice and his actions and advice throughout the case and this put strain on our relationship. I was torn between what I experienced as a very kind and generous man in so many ways and acts which at times seemed reckless and confusing. Was this because I could no longer trust? Perhaps. It is true to say though that I could never quite fathom him out and from time to time we were at loggerheads. One thing I can say though is that he never let me give up.
Christopher would not let me leave the arena, even if I daily felt like downing the gloves and walking away. My love for M alone would have always pulled me back, but having someone driving you on when you are ready to down the gauntlet, was something of a necessary evil, for fruitless as the exercise seemed, it was our only option.
On my return, I was disappointed to find that the formalised application had not yet arrived. I chased the Courts every few days and after some weeks it at last came and I was able to serve it on the Guardian and R. The next months would involve another marathon of study, research, writing and revising Statements and Skeleton Argument and perfecting my Grounds of Appeal. We did not receive a Court date until November 2012, having lost all contact in July that year. This is how slow the wheels of injustice turn in family matters.
I worked tirelessly with Christopher and ran everything past Peter and Sarah to ensure a high standard of legalise. Like me, they often disagreed with Christopher's input and would urge me to rewrite some of his more controversial statements. I was glad to have them in the background as a guiding hand and over time, I relied more on more on the advice of them as trained practising lawyers and less on the somewhat Gung Ho approach of my McKenzie friend.
By the time we were prepared for the hearing, we all felt that the grounds were water-tight. It was not an easy thing to go against a Judge for procedural misconduct. The Courts do not want to admit that any of their Right Honourables are capable of anything other than impartiality, but our grounds for showing that the Judge had not allowed me either a fair hearing or a legally correct one, were very strong. We had good precedents to support each of our claims and Sarah, a former Family Law barrister, was well-placed to know whether what we had was strong enough to give us any chance of success. She felt that we had put together as firm a case, as one could possibly hope for.
We would attempt to demonstrate that the Judge had erred in law by speaking in her chambers to the Guardian, outside of the proceedings. This point alone should have been enough to earn us a retrial and we had a precedent that was on all fours with us on this point. To give Christopher his due, he had found the precedent himself and despite his sometimes cavalier approach to matters, he occasionally came up with very sound points of law.
Thus I had a legal team of sorts - maybe not of the high standing and notable calibre of our previous counsel but people who were supporting me out of the goodness of their hearts, rather than for monetary gain. I stress here that I do not include Philip in those who had greedily depleted my father's hard-earned coffers. To this day, I believe that he was one lawyer who always had our best interests at heart, even if he failed to achieve all that we had hoped. I would never forget his kindness throughout the Criminal Trial, his gentleness towards me throughout the stress of it all and his patience. He was a true gentleman and I will always consider him a friend.
There were several Human Rights issues on which we intended to rely - the fact that I had been denied all of my witnesses - both expert and of fact and the point that no-one who had given evidence on the case had seen me for even a few minutes alone with my son. Surely these points alone would speak volumes to the Appeal Judge.
This, of course, paralleled our experiences of the Judge back on the Scottish Isle that had given my son to his father. He, like JS, had given huge credence to the views of the Social Worker who had made the recommendation for him to be removed from my care and placed with R, having never met M or seen us together when she did so.
It was frightenly common at this time for mothers in this position and indeed fathers, as there have been many injustices on both sides, to find that hearsay statements in regard to their parental fitness are based on absolutely no experience or knowledge of either you or your children and these so-called experts have the power to take your child on fa
bricated evidence, unsubstantiated and usually on tenuous and flimsy assumptions and aspersions. Quite simply, if an expert has no case, they will make it up. The problem being that unlike in the Criminal Court, they do not have to prove anything.
The first psychologist to be involved with us at that time, had also refused point blank to meet with me or hear my views, whilst having admitted to seeing the father privately before her appointment. This in itself had been hugely unfair, but as everything is covered by the Judge's discretion, it means that whatever they allow cannot be easily challenged. However, we had vehemently protested against her appointment. Her reputation for finding against mothers in cases such as ours, was well-known and given the limited number of "experts" on the Island, the Judges routinely appointed her regardless of the circumstances. In fact R's lawyer had tried to get her appointed as an expert for his side, prior to her being appointed as independent. To any lay person, this is blatantly wrong - but parents are powerless against these decisions and judges are almost always protected from their mistakes. No one is accountable for anything - except the innocent parents who try to fight to keep their children and the harder one fights, the more one is damned. I fear that nothing will change until the system itself changes and only the politicians can do this. As we had seen through our own experiences, the few that try do so, are usually shouted down or fail to get sufficient support.
My only remedy now was to achieve Permission to Appeal as the first step towards attaining a full Appeal Hearing.
I was particularly fortunate to have the help of Peter and Sarah, particularly with her background in Family Law, before she had decided this was too emotionally draining and heartbreaking and had changed her field. They were both young and switched on to current trends and thinking. Peter, whilst not in Family Law, was a very skilled solicitor and son of the wonderful couple who I felt were a legacy left to me by my mother. I would not have come to know any of them, had Peter's brother not been severely handicapped with cerebral palsy and my mother taken the role of carer to him for some years. Mum had developed such a close and loving friendship with Jim and Margaret that she had become a unofficial family member and when my mother died, they had brought me into the fold and eventually my father.
Peter and his girlfriend scrutinised all my work and helped to guide me through the mire of the complexities of filing an application to Appeal, alongside the tireless help and support of my McKenzie friend, Christopher. Between our combined efforts, I eventually had a working Skeleton Argument, solid Grounds of Appeal and a well thought-out and coherent statement. Despite the horrendous decision of July which had sent me into a hole so dark, I had felt I would never be able to crawl out, my brief time in Italy had given me sufficient energy to throw myself heart and soul into giving us the best chance possible of success and I put Ron's ominous words firmly out of my mind as I prepared my case.
I had waited weeks to receive the finalized orders from the Judge who had made these heart wrenching draconian decisions that cut me out of M’s life for the majority of what was left of his childhood, although arguably his life had been so fraught now for so long, one could barely call it that.
I believe the delay was deliberate for without the official finalised versions of Court Orders, one cannot complete an Application and whilst my draft Application had now been filed some weeks earlier, the delay in receiving the finalised Contact Order was, I discovered on my return, the reason why we had not had the Court endorsed Application returned,
The long wait for the Contact Order was a growing cause of anxiety. The Appeal Court only allow you a limited time to have everything in and I had to chase the clerk endlessly to get the Judge to release the Final Order. It was ironic that she had managed to get the injunctions finalised on the same day as the hearing, but the one Order we needed most was a long time in coming. On my third time of asking, I was told that the Judge was now on holiday and would not be back for some weeks. I pleaded with the Case Manager for the Appeal to take this into consideration and asked for an extension of time, which fortunately was conceded to by the Appeal Judge. But this did not help my increasing desperation to get back into Court. Every day was one day more without M but to the administrators at the Royal Courts of Justice, I was just another case - one of thousands that they daily processed and regardless of the impact on our lives, and whilst protocol and procedure had counted for little in the Family Court, it meant everything now in so far as having our case heard.
Grief hit me in waves at times and exhaustion quickly followed. It tore me asunder, it burned and raged with thoughts of the deep injustice and it beat me mercilessly with the pain of my loss. I was still swimming against the tide in my mind even when I had soothed my tired body in the warm waters of another Island and in the light of the sun.
By the end of Autumn, I was at last before a senior Judge. Christopher flew over to be with me. To say I was nervous, would be stating it lightly but I knew I was well-prepared. At this hearing, I would be given only twenty minutes to make my case before one Appeal Judge and we kept this to a simple Summary of my Grounds. The evidence supporting these had already been filed with the Court.
I entered the court room with Christopher by side. R was conspicuously sitting with the Guardian and their barrister. As Appeals are held in Open Court, there are no restrictions on who can sit in on them and unless the Judge makes orders otherwise, then anything that is said can be reported. No such orders were made, which is what allows me to talk freely about our experiences now. The former Judge had also left a loophole in the injunction by suggesting that anything that had been formerly reported was not subject to the injunction and as our case had been in an Appeal Court on the Island too, we were covered by the fact that we had tried, unsuccessfully to Appeal the Fact find Judgment out of time.
Both the Family Court Judgment on the Island and the two Appeal Court Judgments so far, as well as my Criminal Judgment, were publicly available online on the Courts website and Bailii - the English equivalent. These alone cover the facts of our cases from the start and whilst they, like myself do not refer to real names - to anyone who knows us or was involved in the case, they are easily recognisable. In some ways, this rather makes a mockery of forbidding me from also going public, but there are so many anomalies between Court Procedure and common decency and natural justice, that it is difficult to know where the law actually does apply in reality on any given point.
We had pulled the Appeal against Residency at an earlier hearing. This was because we could not go ahead in the UK Court whilst matters remained live in the Island's Court. The Judge had suggested that R, in return, withdraw his application for Contempt of the Prohibitive Steps Order and it had seemed like a sensible trade at the time. Had we known just how hostile the English Court would be, we may have proceeded differently but this had all taken place during the first hearing before JS when she had seemed initially sympathetic to me.
We still felt that despite failing to get Permission to Appeal the Fact Find Judgment, the Court's decision had given us some helpful points for our current Appeal. Our QC had then found numerous grounds where the Island's judge had erred in law, most poignantly by acting as his own expert and whilst we had not then obtained Permission to Appeal, the Appeal Court Judges had been helpful to our cause now, by acknowledging that there was evidence that M may have been abused by his father by way of attempted penetration and masturbation.
In the light of the current climate on how many cases of sexual abuse are now coming to the fore in Britain and the extent to which police have both failed to act on and covered up allegations reported to them, it seems ludicrous that the grounds for which the refusal had been made, were rooted in the fact that we had not appealed sooner. To acknowledge that a child may very well have suffered abuse at the hands of the person who now has custody, simply because we had not sought to appeal earlier, is beyond belief and yet it seems rules are considered more important that the safety and well-being of a child, unle
ss of course you are a Family Law Judge, a heavily compensated Court Expert, a Guardian Ad Litem or Social Worker, in which case you can throw the book out of the window and do as you damn well please.
The only reason I had not appealed the Fact Find Judgment earlier were that none of my former Counsel had been brave enough to try. I had begged and pleaded with the barrister who was first on our case, as soon as we had got the Judgment that would turn our life from heaven to hell overnight. The same barrister, I now thought chillingly who admitted to being a Freemason.
I had then turned to each and every barrister who had followed, of which there were quite a few who had come and gone for various reasons, each achieving nothing and issued the same instruction, none would go against the Family Court Judge. They all pushed me to accept his Judgment in the hope of getting contact with my child. The few that suggested I perjure myself by saying I had coached my son to appease the Court, were replaced by us immediately. I would never admit to something I had not done for in doing so I would have been calling my son a liar and he was no more a liar than I was.
The Judge took his seat on the bench. This was now the highest Court before the Supreme Court and to go into it without representation is fairly daunting to say the least. Surprisingly I felt a sudden calm come over me. The Judge was polite, non-aggressive and simply asked me to read out my grounds slowly and clearly. It was all over very quickly and he commended me on keeping to just the points as asked for and went away to consider his decision whilst we adjourned for lunch.
We came back shortly afterwards. There was nothing more to be done at this stage. In fact it was probably the easiest hearing I had endured so far, but it was the outcome that mattered and I stood nervously as he proclaimed his verdict - a decision that would affect the rest of my life and M's - our last chance. I could only hope I had done enough.
The Judge then delivered his decision. He accepted that the Judgment made by the Family Court Judge had been extremely harsh and may not have been made had the case been heard by a different Judge. He accepted that on a prima face basis, I had had an unfair hearing on many counts. He said that he wished there to be a longer hearing where I could now give evidence and that this would take place before three Judges. However, he wanted to hear from the Guardian's barrister this time. This was unusual but everything else suggested we had attained a Full Appeal and we were ecstatic.
Mummy's Still Here Page 19
