As we all know, the family justice system is regularly the subject of criticism and vitriol. Perhaps the most common target is its apparent failure to resolve intractable child contact disputes. However, two recent Court of Appeal cases demonstrate on the one hand that the real failure can lie with the adults involved rather than the courts and, on the other hand, how the courts can be proactive in trying to resolve disputes.
The case of N (Children) involved an appeal by a father in lengthy ongoing proceedings relating to the arrangements for three children. He and the mother had married in 1997, but separated soon after the youngest child was born in 2004. The mother, a serving soldier in the Army, relocated with the children to Germany in 2010, without the agreement of the father. Although she has since returned to this country, that move triggered court proceedings, which continue to this day.
At a review hearing in May this year it was not clear whether the father’s new accommodation was suitable for the children (although the father maintained that it was), and therefore the judge felt he could do no more than go along with the mother’s offer for daytime contact only, pending a final hearing. Rather than wait for that hearing, the father chose to appeal against the judge’s order.
The leading judgment in the Court of Appeal was given by Lord Justice McFarlane, who considered that the appeal was without merit: the judge could not be criticised for making the decision that he did, based upon the information available to him. However, it is what Lord Justice McFarlane said at the end of his judgment that is telling:
“These parents have the responsibility for providing for these children the best childhood that they can have. It is for them to look at what the children need and then to get on and provide it for them if they can, hard though it may be. Given the bedrock of evidence that the children enjoy, have enjoyed, seeing their father, then it would seem normally an easy step for the parents to communicate with each other to establish an arrangement for the children to see their father from time to time in a way that is not burdensome to them, but is easy for them and allows them to know him just as much as they know the mother and her family as they grow up.”
The other case was H (A Child), which concerned a maternal grandmother’s contact with her nine year old granddaughter. For several years the grandmother had played a significant role in the life of the grandchild, including having very regular contact with her. That came to an abrupt end, however, in February 2011, when there was a significant row between the mother and the grandmother. After this, contact stopped, and it has not taken place since.
Matters were made worse when the grandmother reported to social services that the child had told her that she had been touched inappropriately by the mother’s new husband’s father. Social services investigated the allegation, but the child denied the inappropriate touching, and the matter was closed.
However, the damage had been done, and a family rift had been opened up.
The grandmother applied to the court for a contact order. Her application was eventually heard in January this year when, despite the child’s apparent objections, two contact visits were directed.
Unfortunately, those visits did not take place, apparently because of the child’s objections. In view of these difficulties, the court ordered indirect contact only, at a further hearing in May. The grandmother applied for permission to appeal against this order.
Lord Justice Ryder heard the application and decided to grant it. He considered that the issue of the child’s objections had not been fully investigated by the court, in particular there was an argument that the judge should have been asked to see the child herself. If she had, the matter could have been explained to her and it would also have been possible to consider, at court, whether she could be re-introduced to her grandmother. He said:
“In answer to the oft repeated question by practitioners, “what else can a court can do where it is apparent that there is resistance to its orders being implemented”, one answer is that in the appropriate case the court can be proactive and implement them itself where it is safe to do so.”
He directed that the appeal should be heard before Christmas.
In truth, I don’t hold out a lot of hope – but it would be nice to think that these two cases demonstrate to those who are quick to criticise the system, that it is not always the system that is at fault. Firstly, the primary responsibility for children lies with the adults around them and secondly, the courts (or at least some of them) are prepared to do everything they can to reach a satisfactory conclusion.