Posted on | October 21, 2007 | 49 Comments
The privacy of the family justice system makes it difficult for the public to get a good idea about what steps the courts are prepared to take in order to ensure that a child has a relationship with both parents. Those sources which are most critical of the ‘secret family justice system’ often suggest that the courts are either impotent or disinclined to support non-resident parents (usually fathers) in their attempts to obtain contact, but in fact this is not always so. Following is a selection of a few recent cases where the courts have been proactive and determined to ensure that an intransigent parent does not frustrate a child’s right to a relationship with both parents.
Re P (A child)  EWCA Civ 1792,  1 FLR 1820
The child was resident with its mother, who failed to produce the child for contact on 4 consecutive occasions. This was a breach of a court order which had a penal notice attached (a penal notice is a warning to the person who has to comply with the order that they must obey the order or they may be punished including by being sent to prison). There had been a previous history of the Mother failing to attend court or to facilitate contact.
On the Father’s application the court made a committal order against the Mother (a committal order is an order punishing someone who is in contempt of court because they have disobeyed a court order, and this can include a prison sentence) even though the Mother had not been at court on the day the committal order was made. The Mother had failed to attend court, citing childcare difficulties and an application on her behalf for an adjournment had been refused by the Judge who went ahead in her absence and made a suspended committal order (this means that if there was a further breach she would automatically serve a sentence of imprisonment).
When the Mother appealed the Court of Appeal upheld the committal order saying that it was appropriate in some cases to proceed with a committal application even when the Respondent (the Mother) was not present. The key factor here appears to have been the importance of ensuring that the Mother complied with the contact orders and given the Mother’s history of non-attendance the court was entitled to go ahead and deal with the matter. The Court of Appeal held that the Judge was entitled to take the view that the Mother’s reason for not attending court on that day was no more than an excuse. The Court of Appeal noted that it would have been better if the Judge had set out his reasons for the order made, but the order itself was allowed to stand.
Re A (A Child)  EWCA Civ 899
In this case there was a history of attempts by the Mother (with whom the 8 year old child lived) to interfere with and interrupt the Father’s contact with the child. Court proceedings ran over a period of years during which the Judge warned the Mother that if she continued to disrupt contact the court would consider changing the child’s residence to the Father. After findings were made regarding the Mother’s deliberate sabotage of contact the Father chose to proceed not by way of a committal application as in the case above, but by making an application for residence.
The Mother’s behaviour continued. At the final hearing the expert evidence (social worker and psychologist) was that it was in the best interests of the child to live with his Father. The Psychologist’s view was that the Mother had a serious personality disorder and had a total lack of insight into how her behaviour was damaging for the child. The Social Worker’s evidence was that although the child did not want to live with his Father the long term risk of emotional harm were outweighed the short term trauma to him of a change of residence.
The court in this case plainly took the long view. In light of the Mother’s personality disorder (which are usually difficult to treat) there was little prospect of a change in the Mother’s behaviour so the prospects of maintaining a relationship with the Father without causing emotional damage to the child must have been pretty remote. The change of residence was ordered against the recommendation of the child’s headteacher and in spite of the facts that the Mother was acknowledged to provide very good care for the child who was doing well at school, was settled and wished to remain with his Mother. However it is not every case in which there will be a clear diagnosis of a personality disorder – most often the case will be far less clear cut.
One feature of the case is that the social worker involved in his report ruled out termination of contact with the Father as ‘not an option’, leading eventually to the inexorable conclusion that the only way to ensure a relationship with both parents was to change his residence. Unfortunately it is not always the case that social workers / CAFCASS Officers / Judges are prepared to take the same robust view – the professionals do sometimes advocate termination of contact as the least worst option for the child, although I think this is happening far less often, as is evidenced by the increasing frequency of law reports involving cases of a change of residence arising from the resident parent’s implacable hostility.
In the matter of C (A Child)  EWCA Civ 866
Again a case where a Mother repeatedly failed to cooperate with contact orders and sabotaged contact by making negative comments to the child about the Father. The Court held that the Mother was implacably hostile to contact. In this case the court had to weigh up the two options of committing the Mother to prison or changing residence. The child was c6 yrs old. The Father’s practical parenting ability as a primary carer was untested. The Mother had effectively issued the court with an ultimatum, saying that if residence were changed she would refuse to have any further contact with the child. The Judge took the view that since the Mother had made but not followed through on previous threats in the course of the proceedings this threat too may well not become a reality if residence were changed, although it was a risk. The Judge rejected the Mother’s offer of contact made half way through the hearing as he was not persuaded she would honour her offer.
The Mother had recently had a baby with her new partner and so instead the court ordered an immediate change of residence. The Judge had looked at the Welfare Checklist and struck a balance between the short term distress of a change of residence and the risk of long term harm. The Court of Appeal upheld the order. In the Judgment of the Court of Appeal Lord Justice Ward said:
As to the option to make no order, that was the option of abdication and all too frequently judges are driven to that conclusion and that is why week after week fathers come to this court protesting that the court is powerless to enforce its orders, quite unable to control the intractable, implacably hostile mother, even though the long-term damage to the child is perfectly obvious. Time after time this court has to mollify the angry father, endeavouring to explain that the judge has a broad discretion and that his decision cannot be challenged unless plainly wrong. This time the boot is on the other foot, and if a different conclusion has been reached in this case then let it be shouted out from the roof-tops.