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.
Photo by bluekidcory via Flickr under a Creative Commons licence
John Bolch is a family law commentator