How often have you heard this phrase?
If you’re a lawyer or some other professional involved in intractable contact matters, probably quite a lot. If you’re a parent (probably a dad) you may have first hand experience of the phenomena.
Although either parent, or indeed both parents can be implacably hostile, the term is usually levied at mothers by fathers. This, in the main, is my own experience. Whether this is because the mother tends to be the one with whom the children live after the split or there is some other reason altogether, I’m not sure.
Even if a break-up has been particularly difficult and protracted, many parents manage to make amicable arrangements for the children to have contact with the non-resident parent and judicial intervention is not required. However if parents cannot agree on suitable contact arrangements, then the courts will often be required to intervene and make a contact order.
What is “implacable hostility”?
The phrase “implacable hostility” made its judicial debut almost 30 years ago and has been in use ever since (see Re B (A Minor) (Access)  FLR 648). It isn’t suitable to describe a tricky mum or awkward dad. Instead, it is a specific term reserved for the most obdurate of parents. These are the parents who will go to any lengths to prevent or sabotage their children from having a meaningful relationship – or any relationship at all – with the non-resident parent. If I could use only two words to describe implacable hostility, I would say that it’s insidious and sustained.
Implacable hostility is likely to generate conditions that prohibit a relationship from prospering. The desire of the hostile parent to sabotage the relationship outweighs any acceptance that what they are doing is not in the best interests of the child, and they may genuinely believe this to be the case. It is especially difficult if the resident parent is certain that their appraisal of what is in the child’s best interests is more accurate than that of the courts.
It is necessary to differentiate between opposing contact with and without a valid reason. If a parent objects to contact because of genuine fears of violence or there has been a history of domestic violence, then this is not implacable hostility (see RE: H (Contact: Domestic Violence)  2 FLR 42).
Why does it happen?
There can be any number of reasons. From control to revenge, to a genuine belief that it is in the best interests of the child. Every case is different. Sometimes it becomes more about one parent wanting to have the other parent’s bad behaviour exposed in court so they can have their own feelings or beliefs verified by a judge.
How does implacable hostility manifest itself?
There are many different examples of this conduct. Here are just a few:
- Refusing communication between themselves and the non-resident parent, creating either a very difficult environment for contact or preventing any contact at all;
- Making patronising or unpleasant remarks about the non-resident parent to the child which can undermine their relationship;
- Deploying whatever means necessary so as to ensure that contact is made very difficult or frustrated altogether;
- Gifts fail to arrive, telephone messages are not passed on;
- If children are very young, a parent can fail to facilitate telephone conversations, read letters, pass on school reports, news or photographs;
- Moving to a different part of the country;
- Encouraging a child to make a decision in direct conflict with an order of the court;
- Suggesting an attractive alternative to seeing the other parent;
- At the last minute “something happens”, which means that contact cannot take place; and
- False allegations of violence, neglect or even sexual abuse of the child (see the leading case of V v V  EWHC 1215).
What is important to the courts?
As Marilyn and her colleagues have frequently stated, the courts will seek to do what is in the best interest of the children. For this reason, there is a presumption in favour of contact as it is considered a child’s right, unless of course contact would be contrary to the child’s welfare. Indeed, over the last 20 years judges have been quite determined that objections to contact will fail when the child’s welfare requires that contact.
When considering making an order, and deciding what will be in the best interests of a child, courts undertake a balancing exercise based upon the Welfare Checklist contained in Section 1 of the Children’s Act 1989.
Dealing with breached orders
Making an order is one thing, but making it stick can be quite another if one parent is determined for the children not to be part of the other parent’s life. Sometimes an order is complied with to begin with and then contact starts to deteriorate. Other times it never gets off the ground.
Managing intractable disputes and “policing” those who refuse to comply with contact orders is an exceptionally difficult undertaking for the courts and as yet, nobody has come up with a magic solution to the problem.
But the courts do have powers to transfer residence from the resident parent to the non-resident parent. In the case of V v V  EWHC 1215 the residence of two children was transferred from mother to father due to the judge, the late Mrs Justice Bracewell, finding that the mother had made false allegations of sexual, physical and emotional abuse by the father and his family. She believed that such allegations and the parental alienation caused to the children would continue if they remained with the mother. In contrast, the judge found the father to be very reasonable, loving, capable and financially able to have residence of the children.
However, the courts will also sometimes impose a custodial sentence on a parent defying a contact order (see Re W (a child)  EWCA Cov 1280). But a judge will always have to consider the impact of such an action on a child. Imagine the further resentment which could be built between the child and applicant parent if the child perceives they have sent their other parent to prison.
You may think that imprisonment is the ultimate sanction that a court can impose. It ought to be, but in cases like Re W the courts have attempted a custodial sentence before transferring residence to someone else. In this case it was transferred from the mother to the paternal grandmother in the interim, until a review could take place.
And in V v V the judge stated that the last resort would be to “give up”. This is where no contact is ordered due to the fact that the children are so damaged by what the offending parent has told them. They have come to believe it themselves and think that they do not want contact with the other parent. In these circumstances ordering contact or even a change of residence would cause further significant harm. This is the hardest decision to make for a judge or a parent who decides that pursuing their case any further would upset the child. And the case of Re S (A child – Transfer of residence) makes sobering reading in this respect.
In the case of Re L (Contact: Domestic Violence)  2 FLR 334, the Court of Appeal heard four cases where they were tasked with dealing with proven violence or threats of violence, where fears of the resident parent were indeed reasonable and where significant issues relating to harm to the children arose. The Court decided that there should be no presumption either way in favour of contact, but that there should be a balancing exercise based upon the welfare checklist as well as previous contact between the parties (Section 1.3, Children’s Act 1989). Where violence is proven, the court will look at the willingness and ability of an individual to address their behaviour. The welfare of the child is of course paramount. The Court of Appeal dismissed all four appeals. It was held that the family courts need to possess a greater appreciation as to the impact of domestic violence on children.
In my opinion, if a court considers that a child is at risk of suffering significant harm, it is more likely that it will ask the local authority to intervene and make an order under Section 37 of the Children Act 1989. The Local Authority can then be asked to investigate so as to ascertain the child’s welfare.
No happy ending
The consequences can be tragic and some parents give up altogether. It is incredibly frustrating because non-resident parents can feel so powerless.
While the court can grant an order, the reality is that they can be very difficult to enforce.
It’s hard to know the real impact on children as some are too young to communicate clearly. Those who are of an age to “know what’s going on” can be reluctant to speak candidly about their wishes and feelings because they don’t want to be disloyal or take sides.
The more orders are flouted, the more frustration builds with what seems to be an unjust and increasingly hopeless situation. Sometimes the process generates more questions than answers. Why isn’t the court doing anything? Why is this person allowed to ignore what a judge says he or she has to do?
While judges have options to impose sanctions, including imprisonment and transferring residence, the latter is a controversial and unusual tactic, which would undoubtedly have a significant impact upon a child. This can, in-turn, lead to a perception of a “toothless” system. Judges have been accused of being “pro-mum” or “anti-dad”, and the sentiments are further compounded by the so-called secrecy of the family courts.
To an outsider it’s all too easy to think, why can’t two grown-ups sit themselves down and sort something out? But the travesty is, for one reason or another, they just can’t. The outcome is months or even years of legal wrangling, leading to a decision handed down by a judge that, in many cases, a sensible pair could have arrived at themselves, without the large invoice. And above all, the children’s welfare is often sadly overlooked at a time when they most need a positive environment and robust infrastructure around them.
In some less extreme cases a Shared Residence Order is often considered. As Lord Justice Wall states in Re P (Children Shared Residence Order)  1 FLR 3009:
“Such an order emphasises the fact that both parents are equal in the eyes of the law and that they have equal duties and responsibilities as parents. The order can have the additional advantage of conveying the Courts message that neither parent is in control and that the Court expects parents to cooperate with each other for the benefit of their children.”
So on paper, it would seem that the court has numerous options within its arsenal to deal with implacable hostility and its ramifications. The reality, in my opinion, is quite the reverse. Orders can be made, but there is a gamut of means some people can and will utilise to circumnavigate them.
What does the future hold in store for families stuck in this situation? The Family Justice Review recently concluded that additional enforcement measures in cases where there is a breach of an order is not the answer. In its response the government decided that it did not agree:
“Whilst the courts already have a number of enforcement powers (a fine or imprisonment for contempt of court; the imposition of unpaid work; and the award of compensation for financial loss suffered by the other parent) there are practical and evidential hurdles which in practice mean that these sanctions are little used. The Government therefore intends to explore the feasibility of providing the courts with wider enforcement powers so that in appropriate cases these can be used to address wilful disobedience in respect the court’s order. Parents should also be made aware at the outset of proceedings about the potential consequences of disobeying any order made by the court and the government believes that this could help prevent enforcement from becoming the central issue.”
Qualified solicitor DT is a regular reader and commenter on the Marilyn Stowe Blog.
The post features additional content from Stowe Family Law solicitor Jennifer Hollyer.