The effect of litigation upon children by John Bolch

Children|Divorce|October 17th 2013

S-K (Children) is yet another case in which parents involved in long-running court proceedings were warned about the effect of those proceedings upon the children.

The parents separated in 2009, when the mother left the former matrimonial home in Nottingham and took the three children, now aged 14, 10 and 7, with her to live in Essex. The father applied for contact and a residence order (a ruling on where the child should live). In July 2010 an order was made that the children should live with their mother but have ‘staying contact’ [visits] with their father in Nottingham on alternate weekends, during half term holidays, and also during the main school main holidays.

In July 2012 the father again sought a residence order. A Cafcass report was prepared. The Cafcass officer reported that whilst the two older children had expressed a strong wish to live with their father, she felt that the implications of such a move were not fully understood and that some degree of influence had been brought to bear upon the middle child by her father. She recommended that the children should remain with their mother, with contact continuing as per the 2010 order.

By the time the matter went before the court, the parties were agreed that there should be a shared residence order, and therefore the judge only had to consider the question of the children’s living arrangements. She decided that their principal home should continue to be in Essex. However, she also altered the contact arrangements by reducing the number of weekends the children were to spend with their father, partly because she was concerned about the father continuing to talk to them about changing their living arrangements.

The father sought permission to appeal, both against the residence order in respect of the oldest child and against the new contact arrangements. He argued, in particular, that the Cafcass officer had not properly dealt with the issue of the children’s wishes and feelings.

Hearing the application, Lady Justice Black found that the judge had been entitled to rely upon what the Cafcass officer had said. She was not persuaded that an appeal against the residence order had any real prospect of success and therefore refused permission to appeal against that order.

As to the issue of contact, the reduction was something that neither party had sought and that the Cafcass officer had not recommended. Whilst the parties and the Cafcass officer did have an opportunity to address the new proposal, it was at least arguable that some material evidence was missing, such as the views of the children. Accordingly, Lady Justice Black considered that there was a real prospect of an appeal against the contact order succeeding. She therefore gave permission to appeal against the order.

After making her order Lady Justice Black had one further thing to say to the parties:

“The second thing that I want to say is that it is no good for anybody, the pair of you as the children’s parents or the children, to be litigating. Their childhoods slip away whilst you litigate over their futures. They cannot settle down whilst you litigate over what is happening to them, and therefore if there can be some sort of agreement which will prevent having to come to this court, it should be explored.”

As I said at the beginning of this post, this is far from the first time that a judge has given such a warning, and no doubt it will not be the last. I do, however, particularly like that sentence ‘Their childhoods slip away whilst you litigate over their futures’ – words that should be borne in mind by all parents involved in lengthy disputes over arrangements for their children.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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  1. JamesB says:

    “Their childhoods slip away whilst you litigate over their futures. They cannot settle down whilst you litigate over what is happening to them, and therefore if there can be some sort of agreement which will prevent having to come to this court, it should be explored.”

    Agree with that. Without wanting to sound too much up my own backside. After my ex won dubiously with dubious (no) evidence and cafcass officer, sometimes it is maybe better to take what is on offer for the sake of your children and try to ensure that your children never get how you and your ex are.

    Being a Judge in such situations must be very hard. Not saying they are any good at it (I don’t think that they are) I am just saying that it is a difficult job (for which they are over paid and under qualified).

  2. JamesB says:

    By under qualified I mean I think social workers and other non lawyer based professions should have more opportunity to become Judges, but I am not that knowledgeable on these people, but I did think they came from another planet and couldn’t relate to them or barristers or what they were talking about. On balance though, it is better than not having law. Could be better though.

  3. Tulsa Divorce Lawyer Matt Ingham says:

    Lady Justice Black is 100% right on – their childhood’s are slipping away while the paeents litigate the childrens futures on and on.

  4. Yvie says:

    Not specifically referring to this particular case, but in general, If there were a 50/50 default starting point at the point of separation, perhaps litigation would be a lot less. Many parents are able to come to such an arrangement without the interference of the State, or at least something along those lines, which is workable for them as a family, thus protecting their children from the tensions that litigation brings.

    “Their childhood’s are slipping away while the parents litigate”.

    While there is no definitive legislation to re-assure both parents equal access to their children by law, this behaviour is likely continue. If a father is denied contact with his children by their mother, almost surely there will be litigation. Why wouldn’t there be. Children have the right to have both parents in their lives, and the majority of fathers will strive to ensure that their children have exactly that.

    Even when fathers have been granted acceptable contact or perhaps a shared residence order, there is always the possibility of further litigation if the mother wishes to remove that contact from the father. She may have reasons of her own for taking such action, for example, wanting to move on with a new partner and ‘step father’ to the children, or perhaps the thought of more child maintenance via the CSA might spur her on to such a course of action. That it may not be in the best interest of the children does not appear to be a deterent to such mothers.

    Perhaps if both parents had equal access by law to their children, then one parent might be restricted or even prevented from moving to the other end of the country or even out of the country, to suit their own living arrangements. If the welfare of the children really does come first, then surely this is a sacrifice that should be willingly made.

  5. JamesB says:

    Makes a nice change a Judge saying something worth listening to.

  6. Carrie says:

    Yvie, do you think your comments about 50:50 apply to a child aged 2 months at separation?

  7. Yvie says:

    Carrie – I really do believe in 50/50 as the default on separation. This does not mean that 50/50 should, or ought to be applied in every case. It would be a legal starting point only, giving both parents the right to work out themselves what is best for their children, and how best this could be arranged practically, to provide the best care for their children.. Many fathers could not manage, or would not feel able to care for a child 50% of the time, let alone a child aged two months, but that should be for the parents to decide for themselves, without State interference. There is always the exception to the rule, as some fathers would perhaps walk away from the privilege of sharing the care of his children. However, I think in the majority of cases, most decent parents should be able to work out a suitable arrangement which would benefit their children, perhaps with the help of mediation if necessary.

    With the present system, there are fathers who have struggled through the family courts for many years and at great cost, and are still denied a loving relationship with their children, as are the children denied a loving relationship with their father. This is in many cases, entirely due to the wishes of the mother.

    For those parents who are unwilling or unable to put their children first, the Family Court will always be an option. Unless there are very good reasons for a father to be denied contact with his children, I think the Family Courts should be the second line of choice.

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