No contact order for mother mistaken, Court of Appeal rules

An acrimonious family dispute in which a judge failed to order contact between a mother and her teenage daughter must be reheard, the Court of Appeal has ruled.

F (Children) concerned a cohabiting couple. They separated in January last year, with the mother initially leaving the two children, aged 13 and three, with the father in the couple’s former home.

Later, the children moved to live with the mother in her new home nearby, staying with the father for periods of time. But on one occasion the mother accused the father of failing to return the children after a visit. She then went to the couple’s former home, where he was still living, and took the youngest child away with her. The 13 year-old, however, refused to go and remained with her father.

The mother went to court, seeking a contact order under section 8 of the Children Act 1989. In March last year, a judge ratified the family’s situation: the youngest child would continue to live with the mother and the older one with the father, while contact orders specified that each parent could see the other child.

Unfortunately the couple’s teenage daughter, referred to as ‘E’, refused to cooperate and visit her mother at the scheduled times.

A Cafcass officer was referred to try and help the family. She recommended “sustained attempts” to try and resolve the difficulties between the teenager and her mother. In the Court of Appeal, Lord Justice McFarlane explained:

“The Cafcass officer was critical of each of the two parents on the basis that neither of them had discharged their parental responsibility to the children in an effective way, and had allowed the standoff to develop and become established with E not seeing her mother at all.”

However, relations between the parents deteriorated. The mother accused the father of entering her home and ‘stalking’ her, on the basis of which she was granted a non-molestation order.

Meanwhile, the father made a number of allegations against the mother, including a claim that she was involved in an affair with his son from a previous relationship, a man in his mid-20s. Apparently E believed that this was the case and this was the primary reason for her refusal to see her mother.

But in court, a judge firmly rejected the father’s claims, saying:

“There is almost literally no evidence to support that proposition … [the father] has built a sand castle out of nothing, it seems to me.”

He continued the non-molestation order issued against the father. Turning to the children’s welfare, he then considered the Cafcass officer’s assessment of the situation. He recommended that, given E’s attitude to her mother, the courts should not order any contact, unless the parents were able to reach an agreement regarding this.

The mother successfully appealed. Lord Justice McFarlane noted that, while the earlier judge had acknowledged the difficulties posed by the case, the section of his judgement related to the welfare of the two children was “strikingly short”.

The judgement lacked sufficient analysis of the family’s complex issues, His Lordship declared.

“…having described, perhaps correctly, that this was “a very difficult family case”, and that the judge was “satisfied” that E’s attitude towards her mother had been “poisoned” by the father’s attitude to the mother, and his conclusion during the course of the hearing that the father was “clearly, clearly, clearly” harassing the mother and was obsessed by her, would indicate a need for further judicial involvement, and at least analysis of those factors with respect to E’s contact to the mother, and yet the judgment is wholly lacking in that respect.”

He concluded:

“I am therefore entirely persuaded, albeit with a heavy heart, that this judicial process was wholly inadequate for the important issue before the court relating to E’s future contact with her mother.  The appeal must succeed.”

The case was to be sent back to the lower courts for a rehearing.