Stumble Me

As you know there is an application under way to get me out of my home by way of an Occupation Order. Amongst the measures of whether or not the Judge could grant an Occupation Order in favour of my husband, is the test of whether my staying at home with the children is likely to cause them “significant harm”.

Which immediately begs the question: “What constitutes significant harm?”. Under the legislation (Family Law Act 1996 – section 33 (7)

“If it appears to the court that the applicant (my husband) or any relevant child (my children) is likely to suffer significant harm attributable to conduct of the respondent if an order……..is not made, the court shall make the Order unless……” (I’ll go on to the “unless” bit later)

So where does the piece of legislation set out the definition of “significant harm” – what is the test?

(Maybe I should reiterate here that I am a lawyer so am trained to dig around in legislation and unearth the legal definitions and meanings – if they exist!)

In section 63 there are some definitions:

“harm”:

“ (a) in relation to an 18 year old plus, it means ill-treatment or the impairment of health

(b) in relation to a child, it means ill-treatment or the impairment of health or development”

“Development” means: physical, intellectual, emotional, social or behavioural development;

“Health” :includes physical or mental health

“Ill-treatment”: includes forms of ill-treatment which are not physical and, in relation to a child, includes sexual abuse

Section 63 (3) provides a little more guidance:

“Where the question of whether harm suffered by a child is significant turns on the child’s health or development, his health or development shall be compared with that which could reasonably be expected of a similar child.”

So, to sum up the above definitions then:

Harm would be ill-treatment of a child (including non-physical ill-treatment) which adversely affects their physical, intellectual, emotional, social or behavioural development or affects their physical or mental health.

This harm would considered significant if his/her health or development is compared with that of a similar child.

Ok, maybe we’re getting somewhere on the definitions to be applied. However, more questions arise in my mind:

Which children do you compare the child in question to? Is it :

• other children going through an acrimonious divorce whose parents are still living together one of whom has Bipolar I or
• other children of the same age, health, stage of intellectual development etc who are simply going through a divorce of any sort?
• Who is the test group??
• Who identifies these children?
• Who approaches and assesss them?

Ok, so suppose you identify a “similar child”, how do you assess them and then make comparisons? Do you:

• Ask the parent of that child if they can be assessed to determine the difference between them and the child in question?
• Do you guess why there is a difference?

Guess what? There is no guidance in the legislation as to how you go about establishing this! As usual, the legislature come up with these great ideas and then don’t follow through instead leaving it to the judges and the lawyers to try and come up with a way of dealing with it themselves. The judges then decide based on what they, totally subjectively, think about it.

I will put up a separate post on the results of my husband’s application to get me out of the home.

Any experiences of other people who have either applied or defended such an application would be gratefully received.

April 2006: My husband is seeking an Occupation Order to chuck me out of my home.

The law permits a person to apply for an Occupation Order under the Children’s Act where the Judge considers that the children would suffer if a parent stays in the home with the children. This an example of how the Courts and the legislation haven’t addressed the issue of mental health in family law proceedings. On the one hand, my mental health condition has been given by the judge as the main reason as to why I can’t see my children often as she recognised that I am vulnerable to stress as it can trigger an episode of my depression and anxiety and looking after children is deemed to be stressful.

BUT on the other hand, my condition has been completely disregarded by the judge when it comes to chucking me out of my home; the fact that I am inevitably going to suffer great emotional and psychological stress from being forced to leave my children and my home is irrelevant. The court considers the welfare of the children as paramount: fair enough as a general rule. But how is the welfare of a parent with a mental health condition going to be weighed against the welfare of the children and the welfare of the other parent?

Is this mental health discrimination and prejudice or just simply a total lack of thought/ignorance on the part of the legislature or of the individual judges applying the legislation?

My husband is applying to the Court for an Occupation Order to get me, a Bipolar sufferer, out of our matrimonial home. He wants me out immediately. I don’t have a regular job or income (because I have been looking after our 3 children, so I am self employed and don’t have regular work). I have no money to buy another house or even rent one until our matrimonial home is sold. He is refusing to give me any money to pay the rent or support myself: he just wants me out and doesn’t care where I go. (Even though he earns £450,000 he claims that he cannot afford to pay for me to rent somewhere else so we are now having to go to court over that too!).

I legally own half of the matrimonial home and have lived there for 10 years and have spent around 8 of those years renovating it, putting huge amounts of energy, time and love into building it. Accoring to Matrimonial law however, the fact that you own your home makes no difference; the courts can still make you leave it. Any property law rights are overriden by the Matrimonial Law as the matrimonial finances are considered to override property law. (As an ex Property lawyer, I am still appalled by this notion………On the one hand you think you legally own it, only to find that actually you don’t any longer…………)

In case you are wondering what an “Occupation Order” is the following definition may help:

If you want the right to return to, stay in or exclude someone else from the home, you may be able to use an occupation order. Occupation orders can also enforce rights, as well as giving or ending rights to occupy a property. They can also be used to restrict someone’s use of a property, for example, if you and your partner have to live in different parts of the same home.

Occupation orders usually last a specific length of time and are supposed to be a short-term measure and only used in cases where the child would suffer significant harm should the parent remain in the house.

In England, the law on Occupation Orders in Family Law is set out in The Family Law Act 1996, section 33. If you want to check out the legislation for yourselves go to the government website setting out the Family Law Act 1996 as an original piece of legislation and read it for yourself.{http://www.opsi.gov.uk/acts/acts1996/e1996027.htm#33.}

I go through what section 33 says in more detail in another post. But for the purposes of my own particular immediate case, my husband is threatening to apply for an Occupation Order to get me out of our home on the basis that I am causing the children “significant harm” by remaining in the house.

Now, because my husband has been deemed to be the children’s primary carer in the custody battle we have just had, he and the children will continue to live in the house for a while. In the meantime, he is not prepared to countenance me continuing to live there and so is applying to the Court to get me out of the house. I want to remain in the house until it is sold so that I can continue to look after the children and they don’t have to move into rented accommodation with me but can go from their home into two separate homes, both of which will be permanent instead of rented.

I don’t have any money; I don’t have a job and my legal bill is circa £300k with credit card debts and loans amounting to around £50k. All my money is tied up in the house so I can’t just “up and leave” and buy or rent a new home.

I have taken legal advice on whether he can just obtain this Order from a Court and chuck me out. In the judgment in our custody battle the Judge said that I should leave the house within 28 days. She didn’t take into account any fact regarding my lack of finances or the reality of trying to find a new home to go to. According to the Barrister who is now advising me, the Judge should not have even begun to deal with such an Order without listening to all the facts relevant to making an Order to exclude me from my home.

When the Judge had the request to make an Occupation order to exclude me from the home, by law she is required to have regard to the following issues as set out in the Family Law Act:

1. The housing needs and housing resources of each of the parties and of any relevant child
2. The financial resources of each of the parties
3. The likely effect of any order, or of any decision by the court not to exercise its powers under this section on the HEALTH, SAFETY or well-being of the parties and of any relevant child.

If the court thinks that the applicant or any of the children are likely to suffer significant harm attributable to the conduct of the respondent if an order is not made, the court shall make the order unless it appears that:

1. The respondent or any relevant child is likely to suffer significant harm if the order is made; and
2. The harm likely to be suffered by the respondent or child in that event is as great as or greater than the harm attributable to conduct of the respondent which is likely to be suffered by the applicant or child if the order is not made.

The Court may exercise its powers under this section if it considers it just and reasonable to do so.

Now you know the law, lets see how it applies in my case:

I have Bipolar 2, a fact known by the Judge and one she determined made me, in her words “not a very well woman”. Not well enough to look after my 3 children apparently. The Judge dismissed the reports from 3 expert witness Consultant Psychiatrists who made it very clear that I pose no danger to myself nor to the children nor to anyone else and that I manage and cope with my ‘mild’ Bipolar extremely well. They all advised the Judge that I am capable of looking after my children as my illness is properly medicated and under control.

Now, given that I have Bipolar 2, presumably putting me out on the street with no home to go to would be pretty damn stressful for me which could set off a Bipolar episode. It may also cause disruptions to my sleep, not knowing where I was going to be living as well as screw up my carefully adhered to daily routine (necessary to keep my moods as stable as possible). Not to mention now needing to find a job.

So should I be ordered to leave despite the harm that I (the Respondant) may suffer? Well, I guess that depends on whether the Judge decides that there will be “significant harm” to the children if I stay or to my husband (the applicant).

What does “significant harm” mean?

Looking at the facts: I don’t hit the children, I don’t neglect them – quite the opposite. I adore and love my children very deeply. I look after them emotionally and physically, meeting their day-to-day needs: I cook proper meals for them, I wash their clothes and dress them, I do their homework with them, take them to the doctors, administer my son’s insulin injections, take them to their sports matches, take them to and from school. I don’t have a drink or drug problem nor have I ever. I don’t even smoke.

No reports by the school to social services, no criminal charges or actions and the children all have had excellent school reports. Moreover, my husband has continued to go out to work full time leaving me in charge of looking after the children without nanny help since last September. Presumably then he thinks I can look after them otherwise he would have given up his job or insisted on having a nanny.

WHAT IS SIGNIFICANT HARM?

Will my husband (the applicant) suffer “significant harm” if I stay? What would this be? Upset because we may argue ocasionally?

Aaaah, but here comes the “harm”: my husband and I argue – badly and often in front of the children. Does this constitue “significant harm” to the extent that I should be removed from the house because of the “significant harm” the children are suffering when they hear their parents rowing? Of course the children of any marriage suffer when parents argue which is horrendous for them. But, lets face it, parents who remain married and living together often argue horrifically – does the court think they should be forced to live separately because of the harm being done to the children. Of course not. So why is this case different?

How is the effect of our co-habitation in an acrimonious marriage to be measured on the children?

So far, it is my husband saying that the children are “suffering” due to our co-habitation. How does he prove that or doesn’t he need to? The judge who will be hearing this is the same judge who believed everything my husband said so far. I think she will probably just accept that he thinks the kids are suffering from my presence and so that will be enough to exclude me. The fact that it takes 2 to argue and that he is often the one who provokes the arguments seems to be irrelevant; it is my presence apparently, not his, that is causing the problem according to him.

Which brings me to the next question then: how will she determine the effect of chucking me out of my home on me? She is obliged to consider this under the provisions of the Act.

If the Judge decides that the children will suffer significant harm if I stay, she has fulfilled the first test. She then has to look at the second test:

 If the harm likely to be suffered by me or the children  is as great as, or greater than, the harm to my husband caused by my conduct if I have to leave, then the order shouldn’t be made.

So, if the judge considers that my remaining in the home will cause my husband or the children greater harm than the harm it will cause me to leave, then she can order me to go.

Given that the children have made it abundantly clear that they don’t want me to leave, it seems to me that the person most likely to suffer “significant harm” in this situation is me as I have Bipolar and this needs careful consideration. If  I thought the children would be suffering, I would go. But I don’t believe they are and they tell me that they want me to stay with them.

I know that my husband is suffering from the stress of our marriage but he is adding to this by bringing these court proceedings and refusing to give me money to rent somewhere. He continues to berate me and to bully me thereby continuing the stress. What effect does this stress have on him? He says he cannot sleep and that he has a patch of exzma on his leg. I know then that he is stressed. However, given that he does not have an illness to manage and I do, surely the effect of the stress on him is less than it is on me?  I also cannot sleep and it is well known that stress and lack of sleep is a major problem for sufferers of Bipolar as it can trigger either a depressive episode or a manic episode. Exzma or Bipolar? Mmmm…….

But maybe I’m misguided and selfish?

Will she even think of me in all this?

How do I prove that chucking me out on the street with no money to go to a new home will cause me “significant harm”?
Any comments gratefully received. Anyone of you readers ever experienced this or know of someone who has?

I need to put together a defence against being chucked out of my home and I have to do it this week – ANY ADVICE, HELP gratefully received.

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Thank you maryannaville

Just a mention to say many thanks for all the input and great advice you have been giving us over the last few weeks. And just your kind words and moral support…

I have acted on every suggestion (so far), so they are more than appreciated.

Thank you,

DIGG This
A Mum First and Foremost
[digg=http://digg.com/health/Bipolar_Mother_loses_Children_in_Vicious_Custody_Battle_at_the_High_Court]

The Story:

This is a story of a Bipolar mother who has been in a custody battle over her three children due to her Bipolar. This is the result of my ex-husband’s application to the Court for an Sole Residency Order seeking an Order that he alone should look after the children with me only having supervised “contact” with them. The reason cited for his application is that I am “incapable” of looking after the children due to my Bipolar.His application asked for me to only have supervised contact with them.

A 17 month battle ensued resulting in a 10 day hearing in the High Court in the Royal Courts of Justice. Despite hearing evidence from 3 experts in psychiatry and psychology  all of whom gave evidence to the Judge that I am perfectly capable of looking after the children, the Judge decided that, because of my Bipolar, I should not be allowed to be the main carer of the children. She ordered that the children should be the subject of a Shared Residency Order ie that their care should be shared between me and their father with  them having homes with both of us. Legally, that puts us both on equal footing when it comes to our legal parenting rights. However, the Judge decided that their main carer should be their father on the basis that he doesn’t have the illness and can therefore provide greater stability than I can. He was not put through any psychological or psychiatric assessment to determine whether he was capable, despite the fact that he has been violent to both me and the children. The children’s nanny has had not psychiatric or psychological testing and yet has been allowed to take over their care in preference to me. Their main carer is therefore my husband’s nanny as, the reality is, that he is at work most of the time that he should be there looking after them. He heads up a City law firm litigation department (he’s an ex barrister) and is therefore rarely at home before their bed time.

I was thrown out of our marital home by my Husband who succesfully applied for an Occupation Order, claiming that my presence in the house was causing “significant harm” to the children. The Judge who heard this application was the same judge who heard the Children’s Act custody dispute. She came into court saying that she hadn’t had time to read the papers for the application but that she didn’t need to as it was obvious that my staying at the home would damage the children. She sought to evict me without consideration as to my financial means. I had no capital with which to buy or rent another home until the matrimonial home was sold. My husband was fighting my maintenance claim saying he couldn’t afford to pay me any maintenance out of his £450,000 earnings. My work was not producing enough income to fund a rented property. She gave no consideration for the effect that evicting me from my home was going to have on me and my mental health.

I was given 2 days to pack all my stuff and leave. I had nowhere to go other than to my brother’s house. I have been living there for 18 months in his spare bedroom where me and my three children have to share a bed when they come to stay with me. Yet the Shared Residency Order means that the children are to have HOMES with both me and my husband. I was specifically advised that, under the Matrimonial Homes Act, there would be no inequality between my financial situation for me and the kids when they are with me and those of my husband when the kids are with him.

The reality is stark. I am without my own home at all whilst my husband continues to live in our 7 bedroomed matrimonial home. He has been left with 80% of his salary whilst I have been awarded 20% of his salary as maintenance for me and the children. This maintenance will stop in 5 years time. I have incurred debts of £450,000 which has now bankrupted me given the fall in the housing market. I have no capital left with which to buy a home for the children.

The judge considers all this to be a fair outcome!

My children’s thoughts and feelings:

The children’s thoughts and feelings were simply not taken into account. They did not give direct evidence to the Judge either orally or verbally – a point I discuss further below. They are devastated by the decision and miss me terribly. They do not understand the Judge’s contention that I am not well enough to look after them nor do they agree – they all think that I am a good mother who is perfectly able to parent them and indeed they desperately want me to be parenting them far more regularly. My daughter wants to come and live with me and yet no-one is listening to her; she has resigned herself to the fact that, eventually, she will be able to “vote with her feet” and that eventually her view will count.

They cannot understand why they are not allowed to see their mummy very often and don’t understand why nobody has listened to what they want. They keep telling me that they want to live with me and that they are heartbroken without me. My youngest said “Mummy, there’s no love in my heart when you’re not here with me”. She is regularly having nightmares and is wetting and soiling herself regularly. She is convinced that I no longer love her despite all my assurances that I do. She’s clingy and demands my constant attention when I am with her. Relatives observing her say that she is clearly suffering. My son (8) tells me he is often crying himself to sleep and now talks to me and others through his favourite soft toy. He follows me everywhere, (even into the loo!), not letting me out of his sight. I have nicknamed him “my little shadow”. He cries on the car journey to drop him back to his father, pleading with me not to let him take him away from me. My eldest child, 10 , still asks to sleep in bed with me when she is with me and cuddles me for dear life. She keeps asking when the Court will listen to her views and when she is allowed to “vote with her feet”. She has asked me to get her her own solicitor so that she can be listened to.

They all need their mummy – that much is clear. They love me regardless of my condition and tell me that they don’t believe that I am doing anything wrong to them or harming them in any way. They simply cannot understand it all.

Me and my Bipolar:

I was the children’s main carer for the 9 years leading up to this Judgement, some of this time I was the sole carer at home, some of the time I had nanny help.

I suffer from Bipolar 2 and have therefore never experienced a manic episode. I do not suffer from delusions,nor have I ever been psychotic. I am told that I have the mildest form of Bipolar and it is on the borderline of a diagnosis which is why it went undiagnosed for 16 years!

I have only been in hospital twice, both of which were voluntary admissions – I have never been sectioned. The first admission was for depression, during which time I was diagnosed with depression only. The second time was because the psychiatrist changed his diagnosis to Bipolar and wanted me to be in hospital for the introduction of Lamotrigine and because he was concerned that I might be going hypomanic on the anti-depressants. I was not manic according to me and to the admission notes.

I have never abused the children. I have no substance abuse problems, nor have I ever had any substance abuse problems) and don’t even smoke. I have no criminal record. I have a full, clean driving licence and have never been convicted of any driving offences.

I am fully medication compliant and my condition is fully stable with no relapses since I started on medication 4 years ago. I have been through 2 years of intensive Cognitive Behavioural Therapy (the recommended treatment for Bipolar). During the 6 years leading up to my hospitalisation and diagnosis, I was the children’s main carer and was being their mum without being on any medication or treatment as I hadn’t yet been diagnosed. Yet, I was still managing to look after them. The children were thriving at school with good school reports and the schools reported them to be well-adjusted, highly intelligent, popular, lovely children.

I have experienced 4 depressive episodes (no manic ones) since I was 22 (I’m now in my 40s), each of which followed a major life trauma. I experienced the first during my degree – I still graduated with an honours degree, went through my military training at Sandhurst, became an Army officer and rowed for my university, winning the National Polytechnic rowing regatta, so the depression didn’t hamper my functioning. I experienced my second episode at Law school, but still graduated and became a lawyer. I experienced my 3rd after the birth of my second child, but still carried on parenting my two children (aged 2 and newborn) whilst managing my third pregnancy whilst my son was only 6 months old. During this time, I oversaw the building works in our house and worked part-time.

My fourth episode resulted in my (voluntary) admission to hospital. I had three children in three years, my two year old son developed diabetes, I was working and we had knocked down our house and I was overseeing the rebuilding works. My husband had become physically violent towards me and our marriage was crumbling and high in conflict with a husband who was rarely at home. When he was at home, he was emotionally and psychologically abusive for quite a lot of the time. He was highly critical of my parenting and of my abilities as a wife and housewife – I rarely got anything right in his eyes. I collapsed from the pressure of it all.

I tell you the following about myself only to give you an idea of what I have managed to achieve during my illness when I wasn’t even diagnosed and was on no medication. These achievements did not seem to carry much weight for the Judge and did not convince her that I was able to lead a full, productive life and be competent.

I am a qualified lawyer and still manage to work. I am a regular speaker at conferences, have been a speaker on the Radio, and have had many articles published in both the broadsheets and journals. I am an ex Territorial Army officer, having passed through Sandhurst military academy and was in the TA for over 9 years, both in command roles and in organisational roles. I am a qualified mountain expedition leader, have won sailing races with the Army, ski, run, cycle and have led an expedition team across the Yukon in Canada, leading them through 5 weeks of arduous terrain on a 250 mile trek. I gained my legal qualifications by doing a distance learning course of a law degree whilst working full time.

I have many long-standing friends, all of whom say that I have never exhibited any form of mania, nor any substantial depressive symptoms. None of them could believe that I have been given this diagnosis.

Discrimination, prejudice, ignorance and Human Rights and the Law

I will write separately in detail about the law on the Children’s Act,the Disability Discrimination Act, the Human Rights Act, the United Nations Convention on the Rights of the Child and the other pieces of legislation. Being a lawyer I can strive to effect a change in the legislation. This will take a great deal of time and energy but I feel strongly that the law is not serving the interests of the children where a parent suffering from an illness is deemed incapable. The law I discuss here is my understanding and interpretation of it; I may be challenged on this but it is my view currently.

I believe that this whole situation and judgement is as a result of ignorance and a misunderstanding of the complexities of the condition; in particular the fact that there is an entire spectrum of manifestations of the condition from the extremely mild (as in my case) to the extremely severe. There is also an ignorance of the fact that there are two types of Bipolar: Bipolar 1 which is a mix of mania and mild depression compared to Bipolar 2 which is only hypomania but more severe depression. Clearly, the manifestations of these two types of the illness are very different and result in very different sets of behaviours of the individual sufferer and therefore the effect that this has on the family and especially the children.

Discrimination:

I also think that this case falls within the realm of mental health discrimination, prejudice and stigma by the Judge, my exhusband and his witnesses. There is still a high level of prejudice surrounding mental health conditions which is pervasive throughout our society and I aim, through this blog and my legal background and skills (I am a qualified lawyer), to fight it and challenge it through both the court system and the media.

I am fighting this issue as I now know that I am, unfortunately, one of many parents with this condition who is suffering from this kind of prejudice and losing custody of their children as a result. There are now many stories both on this blog and sent to me through my private email, which are heart-rending stories of parents having their children taken away from them as a result of their mental illness. Clearly, some parents are not well and struggle to find the right medication to stabilise their condition, some have substance abuse problems and some have such a severe form of the illness that they would find it very difficult to be a full time parent. However, there are many, many others who have managed to stabilise their condition such that it no longer impacts their day to day life in a debilitating way and these parents should not have their children taken away from them simply because they have a diagnosis of a condition which is not of their making, is not “their attitude, fault or fundamental flaw of personality” but is simply a disease which they are extremely unfortunate to have got.

There are parents with epilepsy, diabetes, cancer, alzheimers, paralysis, Down’s syndrome, Autism or any other illness which can be debilitating either physically hampering the way that they can parent their children or emotionally/psychologically debilitating, yet do these parents have their children taken away from them because they are ill? There are parents who have alcohol and drug problems yet these parents don’t usually have their children taken away from them. Why should people with mental health problems be deemed to be automatically more incapable of parenting their children than these other sufferers?

My son has Type 1 diabetes (a form which is NOT the result of a poor diet), and I witness his extreme fluctuations in mood and functioning. When his blood sugar levels fluctuate, his mood fluctuates: he can become aggressive, irritable, bad-tempered, very fatigued, have headaches, feels nauseus, can’t concentrate, and at times can’t function at all. All this happens on a daily basis and yet how many diabetics have their children taken away from them on the basis that they are “incapable” of looking after their children?

They don’t, because every one would argue that that would be discriminatory and unnecessary. And yet it is allowed to happen to the mentally ill.

The United Nations Convention for the Rights of A Child.

This states clearly that all children have the right to be have their voice heard. Yet the Judge did not hear my children’s opinions at all. They did not give evidence either orally or in writing. They were deemed to be “too young” and yet there is no age stipulation in the legislation. It simply gives guidance that evidence of children will be taken into account if they are deemed to be sufficiently mature enough to understand the issues involved. What does that mean? Who makes that assessment? Who funds the children’s separate legal representation? A CAFCASS officer was the only person who heard what the children had to say.

CAFCASS: The Children and Family Court Advisory and Support Service

Apparently, the Court case was all about what was in the best interests of the children. Yet my children were interviewed by CAFCASS on only 1 occasion for approximately 50 minutes. They gave evidence to the CAFCASS officer that they want their mummy. My youngest daughter told CAFCASS that she wanted to live with me, my son said he wanted to live with both of us and my eldest daughter said she wanted to live with me but see a lot of her father. CAFCASS did not report this properly and there is no transcript taken of the interview so I cannot prove what I heard the children say when I was in the room with them when they said it. It is my word against the CAFCASS officer’s report.

The CAFCASS report was, in the judge’s own words “appalling” and highly deficient in its thoroughness and findings yet the proceedings continued, despite the fact that the Report was the only truly objective evidence on what the children wanted. The judge told the CAFCASS officer that it was the most depressing example of how badly a CAFCASS investigation could go, yet it was still admitted as evidence. He didn’t even interview the schools or my new partner or come to the home to see if the allegations of my disgusting housewifery were true.

The Judge, accountability and Appeals

Astonishingly, a Judge is exempt from the provisions of the Disability Discrimination Act when acting in their judicial capacity! I simply do not understand why a Judge should be exempt from being held to be potentially discriminatory and held accountable for that bias. I am told also that I cannot appeal this decision as there are only 2 grounds for appeal:

1. That the Judge misapplied the law: well, she didn’t because the Children’s Act is entirely silent on the point of how a Judge should assess a parent’s capability or indeed a parent suffering with mental health issues.

2. That the Judge exercised her “judicial discretion” in such a way that no other judge would have exercised it in that way!. Clearly, an individual’s subjective discretion is such a nebulous concept that it is extremely difficult to criticise it. I was also advised that judges very rarely criticise another judge’s exercise of this judicial discretion. I find this an extraordinary protection to afford judges.

You also have to have leave to appeal and this leave has to be sought from the Judge herself. In other words, the judge who made the decision that you wish to appeal, has to agree that you can appeal it! She has reserved the case to herself too, which means that if I wish to bring a fresh application under the Children’s Act for the residency issue to be re-evaluated, I will get the same Judge!

I simply fail to see how this is justice or how it prevents miscarriages of justice from happening as there seems to be little room for challenging the decisions of the judges.

Human Rights

There are also Human Rights issues in all of this. There has, in my view, been a breach of various articles in the Human Rights Act including a breach of privacy, a breach of my right to a family life and a unfair trial.

Breach of privacy:

I was ordered to make a full disclosure of ALL my medical notes, both in patient and out patient and regardless of whether they pertained to my condition. They were also allowed to see ALL my psychology session notes. My computer was gone through by my husband as were all my mobile phone calls and texts and he was permitted to give evidence on the findings of his investigations. He had me followed by a private investigator.

Right to a fair trail

Whilst all of my medical history was obtained and given in evidence, none of his medical notes had to be disclosed, nor his notes from his psychology sessions that he had been having. No medical reports were conducted on him. This meant that the Judge heard all about my medical history and nothing about his.

I spent a week listening to my medical notes being taken to pieces by his barrister: excerpts from my psychology sessions, from my psychiatric assessments, from my previous medical history.I was absolutely destroyed as a person and as a mother by my husband, his witnesses and his barrister. I spent an entire week not being allowed to speak at all but having to  listen to my exhusband’s barrister ask his witnesses to explain certain behaviours and thoughts and emotions that I had as though I was completely invisible and as though they were able to understand what was going on in my head. It was deeply humiliating and degrading and very largely untrue and exaggerated. I then endured 3 days of cross-examination by a barrister who bullied and humiliated and taunted me in the most disgraceful manner about my illness, my behaviour and my emotional and psychological state. His entire aim was to make me seem like a complete danger to myself, to my children, to claim that I had a fundamental personality disorder despite having been told by the experts that I did not suffer from any personality disorder. My whole inside of my mind was taken to pieces by people who knew nothing about my illness and yet claimed that they “knew” me well enough to give evidence about my condition.

My husband’s legal team knew that the only way to ‘convince the Judge that I was the incapable, “mad” wife and mother that he said I was, was to try to focus on the period running up to and following on from my hospital admission and to assert that this was the norm. This he did with devastating success. He was able to focus the Judges attention away from all the years of my parenting prior to admission (ie 6 years) and only focus on the 4 months leading up to my admission and the 12 months following it.

I asked my legal team to include all his own bad behaviour but I was advised that we shouldn’t “sink to his level”.His violence towards me resulted in the police being called out to our home, yet no police records were brought into the trial. His drug taking in the past was not brought up, nor was his visits to places he shouldn’t have been visiting. None of this was considered important in terms of assessing his own personality and fitness to parent.

The witnesses were allowed to give evidence which was outside their realm of expertise ie they were not psychiatrists or psychologists and yet they were allowed to give evidence on my state of mind, on my personality and behaviour and were allowed to contend that I was mentally ill and that I had a personality disorder.

Law on expert evidence

The law on evidence is usually that no witness is allowed to give “expert evidence” ie evidence which should only be given by an expert in their field. So, for example, in a hearing on negligence of a construction of a building, a lay person cannot give evidence on whether or not the building had been constructed properly or not as they are not experts in construction. Yet, in a case involving Bipolar, the witnesses were allowed to give evidence on my state of mind, on my emotional background and on my thoughts. The Judge stated in her Judgement that the evidence of my neighbour was “particularly persuasive” yet my neighbour knows nothing about my condition.

This was therefore not a fair trial in my view. There was a huge disadvantage to me and none to him as he did not undergo any of the same scrutiny into his personality, his thoughts, behaviours etc yet mine were gone through in minute detail.

The Children’s Act – guidance on mentally ill parents

The Children’s Act is totally silent on the issue of parent’s with mental health conditions. It gives no guidance whatsoever to either the Judge or to CAFCASS on how to assess a parent’s capabilities when they are suffering from a mental health problem.

The Judge is given the sole responsibility for assessing any evidence. This is despite the fact that the Judge has no psychiatric or psychology training. They are given the jurisdiction to decide on issues which are beyond their training and experience.  Neither are they qualified in child psychology yet they are allowed to adjudicate on the effects of a particular parent’s illness on a child.

There is no panel of judges and experts; simply one judge.

How is this a “fair trial” and how is it justice?

“Personality v symptoms”

Because many of the symptoms of the illness can be mistaken for inherent personality traits, this is the main barrier to people being able to see the person for who they are rather than as a cluster of mistaken personality traits. The fatigue associated with depression is perceived as “laziness”, the lack of communication as “being anti-social”, the anxiety as being “over-sensitive” etc.

The mainstay of therapy for Bipolar consists of helping the sufferer develop “coping strategies” to stave off depression and minimise stress. Each sufferer has their own “triggers” ie stimuli, which will bring on either an episode of depression or an episode of mania/hypomania. During my therapy, I recognised that stress was a major trigger for me so I learnt to avoid taking on too much eg too much work, too much housework, too much organising social activities etc. I also learnt that a coping mechanism for stress was to go running, listen to music and do other pleasurable activities to bring balance back into my life.

During my recovery from my admission to hospital with depression, I was advised to “put my recovery first” for a while. This was interpretated by my husband and others as me being “selfish”, “self-absorbed” and not interested in being a wife and mother. I was “lazy”. On the one hand I was being advised by my medical team to put my recovery as the highest priority, on the other hand I was being criticised roundly by my husband and others for being “selfish” and “lazy”.  This contradiction was causing even further stress and was making my recovery harder. To have a husband who says, on the one hand that he understood and supported me and yet was highly critical when I implemented my coping strategies, was very difficult to cope with.

Noise is another trigger for me and London is extremely noisy and crowded. I therefore sought to regularly escape from the noise and crowds and travelled down to the seaside to get away. This was considered “unnecessary”, “self indulgent” “putting my own needs before my children’s”, “irresponsible”. The Judge decided that my reasons for doing this were “disingenous – as it was really for my socialising”. Yet this need to escape the noise and stress of my town was highlighted as a positive coping strategy by my psychologist.

All these symptoms and coping strategies were misinterpreted and I was condemned as a result.

My Bipolar Partner

My new partner has Bipolar 2 – a mild form like mine with no mania, delusions or psychosis but depressive episodes and anxiety. We met in hospital and formed a close bond as a result of our mutual understanding and empathy of our respective suffering and struggles to come to terms with our condition. He was diagnosed at the same time as me and he and I were the only people we each knew with the condition. We relied on each other during the first year of diagnosis to support, inform and listen to each other. He was discharged after the first week of my admission yet he came back to visit me, take me for walks and to the cinema, send me encouraging texts and so on. My husband visited me twice during my 5 weeks of hospitalisation, saying that he was “too busy” looking after the children and working to find the time to come and visit me. Not surprisingly, I came to rely increasingly on my new found fellow sufferer for support rather than my husband. After a year, I decided I wanted to leave my husband and be with someone who understood me and my condition and be fully accepting of the limitations it might impose on me.

My husband immediately issued proceedings against my new partner for a Prohibited Steps Order ie an application to the Court to prohibit my partner from seeing the children claiming that he was a danger to himself and a potential danger to the children. No supporting evidence was submitted with this application – it was based purely on my husband’s contention. This application was in place for 17 months before Judgement was handed down by the Judge.

My partner was prevented from seeing the children for this entire time simply based on  my exhusband’s  assertion that my partner had Bipolar and therefore shouldn’t be exposed to the children. He has no criminal record, no alcohol or drug abuse and has never hurt or threatened the children in any way. But he was still not allowed to see them until the Judge ruled that he could.  Unlike criminal law “innocent until proved guilty”, in these proceedings my partner was “ill and dangerous, until proved otherwise”.  This is despite the fact that the children adore him and kept asking why they couldn’t see him.

He went through hell in those 17 months; having been made a party to the proceedings he was required to be a witness and therefore be interviewed by my lawyer and prepare witness statements. He had to be examined by a psychiatrist to prepare an expert witness report, he was in the witness box for 2 days and his medical notes were trawled through in court. Unsurprisingly, he found this deeply humiliating, insulting and degrading. My husband’s barrister did everything he possibly could to depict him as unstable and incapable of being a parent.

When the Judge did hear the application, she threw it out on the basis that it was unfounded. Yet, during this 18 month period awaiting judgement, my partner was forbidden to see the children. This also meant that he was brought to trial where full disclosure of his own medical notes were ordered and he was cross examined for 2 days. He was again bullied and humiliated by the barrister cross examining him, and being told repeatedly that he was “unstable” and clearly not capable of parenting.

This was also used as a reason for my children not coming to live with me: the two of us together are clearly unable to care for children, according to the judge. But why?

• Neither of us has a criminal record.
• Neither of us has a drug or alcohol problem and never have had.
• Neither of us have abused the children in any way, nor threatened them.

Yet we are considered to not be capable of looking after the children, based on our mental health condition.

Kids need mums:

The vast majority of people believe that children need their mothers and not just on an ad hoc basis, but on a regular one with a great deal of love, nurturing and understanding of their needs on the mother’s part. The mother-child bond is fundamental, deep and irreplaceable. All the psychological studies into the importance of the role of the mother bears testament to my contentions. My children desperately want me; they are unutterably sad that I am forced to see them so rarely and are emotionally and psychologically suffering as a result.

This blog is my attempt to highlight that all parents, regardless of their illness, are needed by their children and that discrimination, ignorance, stigma and a lack of empathy is are all in the way of blocking those children from their parents.

Any comments, or offers of support would be greatly appreciated.

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DIGG This
So in the summing up. The Judge referred to moments, whilst I was being cross examined, of “wobbling” using her words. She used this in her summing up as an example of my emotional instability. I cried momentarily twice during the 10 day proceedings, 3 of which was me being cross-examined by an extremely, and unnecessarily, aggressive barrister. During the first week of the trial, I had to sit through 5 days of other people giving their views on me – only on me, not anyone else. 5 days of being scrutinised, criticised, analysed, mostly by people who barely knew me. Yet these people felt they were in a position to tell the Judge what I thought about things, how I felt about things, how I reacted, what motivated me to do certain things.

As my psychologist repeatedly told me during my sessions with him: “The only person who knows what you are thinking and feeling is YOU, not anyone else. All anyone else can do is guess.”

Yet this is what these witnesses were doing – guessing. Statements such as “The reason she behaved in that way was because she felt that…….” “It was clear that she thought………..” “I know that she felt [x] because she thought that………”

It was extraordinary to sit and listen to it all. Some of these people had only met me on a handful of ocasions, some of them only for a few hours. Yet they were all allowed to pontificate on how I am as a person. Extraordinary…. 

Firstly there were my husband’s 7 witnesses (2 of whom were neighbours whose sum total of experience of me amounted to around a week at most, but whose views were still sought and given consideration). One was a 17 year old babysitter, 2 were girls in their mid twenties who had no children of their own. These girls have no concept of what it is like to be a mother, yet they were permitted to give their views on my abilities as a mother! Two of them had no child care training yet they were permitted to give their view on how I was raising my children!

These witnesses were saying that I was unstable, selfish, inconsiderate, untidy, a bad housewife, a bad cook, screwed up, hysterical etc, etc. I was the worst possible wife and mother that you could possibly think of. J.K.Rowling couldn’t have come up with a nastier character if Harry’s life depended on it………..Dementors/Death Eaters/Me – we’re all in the same category……!

Then there were 2 psychiatrists and 1 psychologist. They went through my entire medical notes including all my psychology sessions where I had revealed my innermost thoughts and fears thinking, at the time, that these notes were wholly confidential and that I could say anything in those sessions without the fear of anyone else ever seeing them. Wrong: the entire court heard them, read them, scrutinised them and twisted them. I had to sit and listen to all this for 5 days being unable to defend myself, explain myself or to put any of these accusations, assertions or interpretations of my thoughts into context. Indeed, the pyschologist who took these notes wasn’t even there to be questioned on the sessions!

The only two people who knew what was said in those psychology sessions were me and my psychologist – and yet, we were the only two people who weren’t being asked to analyse and explain these notes. Everyone else had a field day! Woody Allen could have some great material in there for a hysterically funny/sad movie……I’m on the couch but everyone else is putting words into my mouth and taking thoughts out of my head…….

And, guess what: I cried – momentarily. This was evidence, according to the Judge, that I was “not a well woman”. How many people could have gone through that kind of scrutiny, criticism and blame without crying?

Most people would suffer greatly under cross examination in the High Court in these circumstances; a mother’s children are the centre of  her world and therefore the thought of having them taken away would be distressing. Did the Judge really expect me not to show any emotion? If I hadn’t, would that then have been interpreted as me being “out of touch with reality”? Or how about “unable to comprehend the enormity of the allegations?” etc, etc.

My ex husband also cried, yet this was not a fact which was then used as evidence of him “wobbling” or being unstable. Quite the contrary: it caused the Judge to feel sorry for him and to consider that he had “done all that he could to keep his marriage together….”. How can one person’s tears be construed in a negative way whilst construing the other person’s tears in a postive way??

I personally think it is evident that the Judge was attributing various pieces of evidence to confirm that I had a serious mental illness and any sign whatsoever of weakness or unstability was due to being ill and not to normal human reactions to stress.

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DIGG This
My psychiatrist’s view is that my case is a classic one of mental health discrimination: he says that Mental Health discrimination is about 20 years behind all other forms of discrimination – race, sex, religious and possibly age. Read more

DIGG this

Should emails, personal web history on your own private laptop, text messages and phone conversations, be private even to your partner, or should it be ‘public domain’ for your spouse to look at his/her leisure – then use against you in court?

[See the following link for advice on protecting your privacy: http://www.womensaid.org.uk/page.asp?section=00010001000800010001]

Clearly, one should be careful about storing such important and sensitive information in the first place. This was not a family PC, this was my laptop that was always password protected, and set-up to log out after 5 mins of being idle. Anyone getting access would either have to know my password or know how to hack into my computer.

He also quoted various text messages that I had sent people and kept copies of them to produce to the Court. All my email correspondence was likewise copied to the court, as were my private letters and cards.

This kind of controlling behaviour is recognised by the Government, the police and domestic violence organisations as a form of domestic abuse, yet he was allowed to produce the things that he found out about me through his invasion of my privacy as evidence in court.

What I find equally disturbing is that this was accepted, in the Court by the judge and the barristers, as being normal behaviour for a husband to produce this kind of evidence. This was not recent activity on his behalf either as he had information that he could only have found months prior to the hearing, leading me to believe he was doing this on a frequent basis and over a time frame that would indicate he was doing this well before he issued legal proceedings. Indeed, even whilst we were still married and prior to any separation, I recall him being furious when he picked up my phone to check my messages (without my permission) and he found that I had password-protected my phone. He insisted that I tell him my PIN and, when I refused, he tried all kinds of tactics to persuade me that I was being unreasonable in agreeing to the invasion of my privacy. He insisted on opening most of my private post too and even cut up credit cards sent to me and threw away letters of mine before I had even read them.

Mind you, I should have known really, given that I had discovered that he used a private detective to follow my movements too as well as asking the nanny to report to him where I had been, what time I’d left the house and when I returned, what I had been doing etc etc. He even asked a relative to come and stay at our house for a number of weeks so that she could keep a diary of my movements, my housework, my activities with the kids, my arguments with him, anything I said etc, etc. I know this because I found her notes………..

Oppressive behavior? Compulsive Obsessive? Or just a competent litigator who does this for a living and is an ex-barrister himself?

He also phoned all my and family members friends in turn, pleading with them for information on where I was, how I was doing, asking for information on things I had said and done. He then quoted some of the things that they had said, taking their comments out of context and trying to prove that even my friends and family disapproved of me and my “behaviour”. I subsequently showed some of his witness statements to these people to check with them about whether they had, in fact, said the various things that he had alleged they had. Apart from two comments from my closest friends, the other statements were untrue and had been fabricated, yet they were believed.

Either way, the Court found all of this acceptable behaviour on his part. I simply don’t understand why this kind of hearsay evidence is allowed with no burden of proof on my husband’s part. It seems that a person is allowed to obtain ”evidence” at any price and with extreme invasions of privacy without condemnation. The fact that hearsay evidence is then given the kind of weight that his evidence was given defies the usual rules of evidence and yet is permitted and highly damaging.

Now I know this, I would advise anyone to lock their phone, be extra vigilant about their computer and coach your friends and family into not saying anything to the accuser, destroy all former letters and re-direct any post to a friend or family or a PO Box.

For further advice on how to ensure that you minimise the risk of this kind of invasion of privacy, see the following website from the Women’s National Domestic Violence organisation Womens Aid:   http://www.womensaid.org.uk/page.asp?section=00010001000800010001

 

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DIGG This.
Well. So far, legal fee’s are £300,000 and climbing. And what has it achieved?

Peace of mind I guess to a degree. Knowing that I HAVE done everything I possibly can for my children. They will grow up knowing how far I went to protect them and to want to give them what I thought was a good life ie living with their mother rather than with a nanny.

I’m not looking for a medal, hell, I need a home now. Actually, a place to live would be good, a home means belonging, and right now I don’t feel I belong… period.

I don’t think I even have peace of mind: I defended my husband’s application for full custody for the children to live with him because I felt it was wrong for them to be without their mother. But I have ended up with only seeing them twice a month. I have lost my home and am hugely in debt. Not to mention additional costs incurred by additional ongoing counseling whilst this whole sorry state of affairs started.

I was blinded by the thought that justice would win through. Clearly my idea of justice was different to the Judge’s.

Anywho, if anyone wants some questions or thoughts answered, good chance I know the answer. Hell, I spent enough on the advice. And that’s all it ever was. Advice. Not certainty, not the solution.

BUT: My biggest word of advice would still be to hire a good family lawyer. I am not a family lawyer but have spent an absolute fortune on legal advice.

If anyone really does want some guidance on what the whole process of going through a custody battle is, where to find the relevant legislation, where to get some recommendations for a good lawyer, then do drop me a line on this blog. I didn’t win my case, but that doesn’t mean that I haven’t learnt a whole lot about the process in the meantime.

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Proud to announce the new domain name:

http://kidsneedmums.co.uk

or http://www.kidsneedmums.co.uk

This is an automatic change, which replaces the previous: http://bipolarised.wordpress.com

Both work, but we are using the top one from now on as the default.

DIGG this

Another hypothetical scenario. Read more