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Using harassment law to enforce contact – update

17 January 2010 3,894 views 11 Comments

I was back in court again on 15th Jan trying to bring a private prosecution against my ex-wife for harassing me by damaging my relationship with my children.

An earlier post on this site reported I had won a Judicial Review of the Magistrate’s decision to refuse to issue a summons. The Magistrate’s decision was quashed and the matter was referred back to the Magistrates for reconsideration.

The 15th January hearing was to reconsider it, and unfortunately it was again refused, this time for a different reason.

I take a number of positives from it, however. At this hearing the court did not dispute that I had a right to bring a private prosecution without first complaining to the Police and, more importantly, the court accepted that if my ex-wife damaged my bonds with my children that could constitute criminal harassment. The court held that in my case, the evidential base for the alleged harassment was not sufficiently strong, and it was dismissed for that reason.

I am not too disappointed. It has not been a wasted exercise. It has opened the door for others to use this route.

It means that anyone who can provide firm evidence, to a criminal standard, of incidents which have damaged your bonds with your children, harassment law is a possible route to seek redress, and I would be happy to assist anyone who wants to try it.

There must be at least 2 incidents during a 3 month window in the preceding 6 months. The incidents don’t have to be breach of a contact order. They could be alienating you from your children, or wilfully using the power of the residence order to belittle and control you. Remember, in criminal proceedings, it is no longer the so-called welfare of the child principal which trumps everything, and allows the other parent to destroy you with impunity. This is criminal law, outside of the Children Act, and different rules apply.

You have to be able to prove 2 things to the highest standard of proof, i.e. beyond reasonable doubt:
1/ that the other parent did these acts which you allege, and
2/ that he/she did them knowing that they would cause you distress.

If this applies to you, get in touch.

Ray

11 Comments »

  • E.J.Frogster said:

    Dear Ray,

    I’m sorry that you have been harassed, and hope it ultimately didn’t annoy you too much.

    Can I ask you a bit about the procedures of private prosecutions? What costs did you have to pay? If you had enough evidence to go through with the whole prosecution, would you have £150,000 or some other substantial sum of money to pay for the prosecution? If you lost the harassment case and your ex was not found guilty of harassment (not enough evidence etc.), would you HAVE TO pay for her defence money? How about the COURT COSTS?? Who is responsible for paying the court costs? (In a pro bono venture or a paid one)

    My case is sexual crimes, the police have been useless to me but band 1 criminal lawyers the most useful; they know I have a legitimate case no matter what the average person in the street thinks of this sort of issue.

  • ray (author) said:

    Basically you apply to the magistrates court for a summons to be issued requiring the person to attend court to answer the charge you wish to bring. There is no particular application form – just set it out in a letter; you should then be given a date to attend court to “lay informations” before the court, and at that hearing you need to provide evidence to the magistrate that there is a prima facie case to answer. If you succeed, he should then issue the summons, and the prosecution begins.

    As for costs, this is what I think the law says, but until we get a case through court we cannot be absolutely sure what will happen:

    In civil proceedings costs normally “follow the event.” i.e. the loser has to pay the costs of the other party. However, rules on costs in a Magistrates Court are different. Sections 16 – 19 of Prosecution of Offences Act 1985 governs them. The Act treats a Private Prosecutor the same as a Crown Prosecutor as far as costs are concerned. This means that if the private prosecutor wins, the prosecutor can ask for his costs to be paid by the defendant, but if the prosecution fails, the defendant is normally paid his costs from Central Funds (a pot of public money), not by the prosecutor.

    However, Sec 19 says the court has the discretion to make a costs order against someone “where the court is satisfied that one party to criminal proceedings has incurred costs as a result of an unnecessary or improper act or omission by, or on behalf of, another party to the proceedings”

    If your prosecution fails, therefore, defense costs should be met from Central Funds unless the court is satisfied that you acted unnecessarily or improperly, in which case it may make the order against you personally. However, until a case goes through, we cannot be sure exactly what a court will do.

    If you instruct a solicitor to bring the prosecution for you, you would have to pay his costs initially. You could then apply for the defense to pay them if the prosecution succeeds, but if it fails, you would have to bear your own solicitor’s costs yourself.

    If you bring the prosection in person without a solicitor, you would, of course have no costs of your own, and you would need to pay only the court fee, which is £150. If you are on benefits or earn less than £12,000 pa, you are exempt from paying the fee.

  • E.J.Frogster said:

    Dear Ray,

    The case about harassment is very interesting, I’m sure someone will benefit from this information. By the way, have you got any tips for not marrying someone who I’ll then have to prosecute? I’m 26 years old and don’t fancy obtaining a husband whom I’ll have to prosecute at a later stage.

    As for a private prosecution, for the past 8 months of my life I have been asking my Member of Parliament to sign his name on application forms for pro bono legal assistance. To this date he has signed none. He has been trying to figure out the Sexual Offences Act (2003) and what I mean by sex crimes outlawed since 124 years ago. He is very keen though.

    I have had to read up on Central Funds quite recently. Private prosecutions are very scary things financially among everything else. There are scary stories of prosecutors going bankrupt following unsuccessful prosecutions (for blasphemy, for example) as they have costs ordered against them. I am already sexually violated, if you excuse my bluntness, for me to go bankrupt on top of that from trying to do something about it would be most bizarre. I should probably start reading law books about personal insolvency? Knowledge can give me reassurance and peace of mind if I know what can happen and what’s unlikely to happen. The severe delays when legal proceedings have not even commenced are really excruciating. I hope my Member of Parliament understands that.
    I don’t see how my prosecution would be unnecessary and I hope my utterances in the song ‘Gordon Brown be my Angel’ http://www.youtube.com/watch?v=DCEWhEuhRoo for example is not a case of being improper saying a little too much. I don’t think being listened to 3000 times means it can influence the jury in any way when nobody is named and there are no case details in the song.

    I am still without legal representation. Shouldn’t I have applied to the court for a summons by June 2009? But then that would be when I had no clue whether any lawyer would be forthcoming to represent me, I am in fact without £150,000 I just cannot afford to prosecute. As for court attendance I might have to do it via videolink as I have plenty of reasons to believe I will be outside of the United Kingdom. I don’t know how easy or nightmarishly difficult it is to coordinate that. I have absolutely tonnes of evidence.

    As legal principles are complicated and the case details are complicated, how am I going to manage without a lawyer though? … Prosecution is very risky financially and otherwise, the less I am advised the riskier it is. That’s why many people want to stay safe by staying away from the law and legal proceedings, but then they might want to ask themselves what is there to protect them from harm?

    But you are saying it’s technically possible to prosecute without a lawyer? That sounds like it’s better than not prosecuting. Or I could start the process and somehow naively hope that my Member of Parliament can find me legal representation in due course? I can only really have legal representation if it is offered pro bono. In a way it could be an interesting way to end up getting paid- I know I have a very large number of witnesses and a big pile of documentary evidence. If the opponent loses, he should pay for my prosecution right? I wonder if that means my pro bono lawyer can end up being paid, so it’s a bit like no-win no-fee?

    Somehow I got the impression that the court fee was a lot more money than 150 pounds. I’ll need to investigate.

    I’ll need to study and re-read the information you have given me- legal proceedings that have not commenced give me such headaches. For a number of strong reasons it is very important for me to try my best. Last February I prayed 88 prayers over this and still went to work- I don’t know how I managed, I didn’t really sleep, that’s why. Also, in 125 years, there is a great need for the law to be fulfilled: this is a long story.

    By the way, in my case I had a parent that I didn’t really see in 8 years, I don’t really recommend that sort of thing.

  • E.J.Frogster said:

    Ray!!!!!!!!! Did you ask around in town about after-the-event legal expenses insurance??
    I asked around about that for a private prosecution of criminal offences and the insurance firms say they don’t do criminal cases!! So that can’t shield me from a £150,000 cost order!!!

    Also, is there any reason why I haven’t already applied to the Magistrates court for summons?? I have a huge number of witnesses and huge number of pieces of hard evidence on paper, unlike your case, I mean in a 3-month window there was just a huge amount of evidence, also, medical papers, for the rape by fraud case… all this time hoping for Parliament to get me a pro bono lawyer which may or may not happen…

    Why haven’t I represented myself in prosecuting??? In the beginning it just sounded like it’d be a terrible fumble not being legally trained!!!!!!!!!!!!!! Maybe doing it is just much better than not doing it, but I don’t want to go bankrupt. And the world can be so unfair. Looking at the 2 years or so that’s gone past, and the 2 years ahead, it seems like I want to prosecute more than anything else!

  • kipling777 said:

    Ray, I’ll avoid a big essay, so to be brief, two points to prove:

    1/ that the other parent did these acts which you allege
    I think this is straight forward and self explanatory. Okay.

    2/ that he/she did them knowing that they would cause you distress.
    How can one ‘PROVE’ they KNEW it would cause you distress?

    If someone is repeatedly denying me contact with my kids, it should be a no-brainer. I assume repeated requests/faxes to their solicitor /application for a contact order/ for contact should suffice? This is important. If I press for a private prosecution, it is important for ALL Dads that we get as far as possible.

    Apart from the above and Time constraints/Quantity of incidents, is there something else we are missing? Was the Magistrate just looking for any excuse to knock you back again?

    Thanks,
    Kipling777
    B.

  • ray (author) said:

    Good point. Proving that someone knew something could be very hard to do. However,there is an alternative which a prosecutor could rely on. You are required to prove that she knew it would harass you or “a reasonable person in possession of the same information would know” it would harass you.

    As a prosecutor, therefore, you could rely simply on it being a no-brainer, as you put it. You give evidence, via your own affidavit, that it did cause you distress, and you invite the court to find that any reasonable person in the accused’s position would know that what she did would cause you that distress.

  • ray (author) said:

    Sorry, I missed the other point. Yes I think most most Magistrates will be looking for a reason not to convict. Two of the 3 Magistrates that my case came before used the phrase “opening the floodgates” as a reason to refuse the summons. The Judicial Review judges were on my side on that point: that is not a valid reason in law to refuse me.

    However, it does show where the instincts of magistrates may lie. They will be worried their courts will be inundated with similar cases if one of successful. I should add that the 3rd magistrate was very fair and would, I believe, have been well disposed to my prosecution if my evidence had been stronger. So not all magistrates will see it the same way.

  • kipling777 said:

    Ray,
    Your efforts in pushing for a prosecution for something that contravened your Human Rights[The Right to Family Life] has made it a bit easier for all those Dads who will come after us. Thank you.

    I’m putting a draft affidavid together. I will state in it that I feel ‘harassed’ and that I believe my Human Rights have been infringed in addition to details of the incidents and a bit of ‘beefing up’. Should I mention your Judicial Review in the Statement or at Court or at all?

    I want to make it as difficult as possible for a Magistrate to knock me back, for my sake and the sake of other Dads who will follow.

    Apart from that, what am I missing?

  • Neil said:

    Ray.

    Hi. I am so very interested in your experiences. I have been in a similar situation and I have made a decision to move out of family court and approach my ex from a civil and criminal angle.
    I have spent four years in family court.

    I can evidence in the last six months a third breach of contact arangements in which huge distress was caused to me and my partner and my children. I have continuing evidence going back four years.

    Also I have just had the mothers private investigator follow me and then attempt to elicit information and trap me.

    I note that I can easily prove these acts were undertaken.
    I can prove that the mother knew they would distress me and my children. Eg. she had a previous legal finding against her in county court for similar, she was evidenced in court by cafcass for a second similar act and had the chidren taken from her residence to me as as a result. I had also written on two previous occasions outlineing the behaviours that I considered to be harassing of me via her solicitors. I had outlined in family court evidence that I considered certain acts on her part harassment of me.

    Can you suport me to take this further please, offline, as I need to deal with it before my children are finally alienated from me permanently.
    Particulalry how to present this to court so it includes what it needs to include to be succesful.

  • gaynorbarry said:

    its strange that when violence is committed in the home a criminal standard of evidence is not required.

  • tomftj said:

    In reply to Neil (belatedly and hopefully seeking details):

    The Family Court is even less fit for the purpose than it ever was.

    Insistence on mediation (for emotional abuse? !!) is not only pitiful and pathetic but is transparently a method by which the joke “court” refuses to examine parental alienation and emotional abuse.

    In court today, 9.1.2015. Produced evidence of abuse (and links to historic behaviour) i.e. deliberate alteration of suffix ‘sent from’ on his iPad . . . to now read “sent from prison”.

    (mother was in court for a trumped up £200 pocket money claim; acting as child’s “litigation friend” – yes,the courts really are that stupid to allow such a claim !!!!!
    Comedian district judge did not give a flying toss !!!! )

    In more than 10 years, yes, ten years, we have had zero help from court. The abuser (a teacher !!!) apparently can do no wrong.

    Anyway, what information do you have for me re. private prosecution (I roughly know the procedure already).

    Please let me know how, (a) if at all, you overcame the risk of costs (the bigots tend to support each other don’t they?!! and (b) if you are willing to, what success you found in issuing your summons for harassment inc. art. 8 art.6 etc of European Convention?

    What about the idea of suing (vicarious?) the employer local authority who employs (my) monster. She is a teacher. Local authority owe me and child a duty of care, child attends the local school.

    Will be good to hear from you. But, if all yours now in the past, fully understand your not wanting to relive life on Planet Dumb-Bigoted.

    All best.

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