How the courts deal with intractable contact disputes: two examples. By John Bolch.

Children|November 14th 2013

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.

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. Stitchedup says:

    criticism is often directed at the courts because they often appear biased or at least gullible; only too eager to accept allegations of abuse, usually against the father, without the slightest evidence.

    I also have an issue with the weight given to the likes/dislikes of children. We all want the best for our children but often we are not in a position to give it.

    A man forced out of his family home, having to pay child maintenance and perhaps spousal maintenance may well find himself in a rat infested bedsit through no fault of his own, unable to provide suitable accommodation for the children. That’s an extreme case.

    A less extreme case may be that the man has to live in accommodation far more modest than the family home he has been ousted from, and the children simply don’t like staying with the father in accommodation below the standards they are accustomed to. In my opinion, children should be strongly encouraged to stay with the NRP, even if the accommodation isn’t to their liking and the family courts should not give weight to the “likes” of children in such circumstances. This encourages spoilt, materialistic children rather than well rounded, modest children that will grow to become compassionate adults.

  2. Paul says:

    The two scenarios you accurately picture, Stitched, are neither rare nor extreme. Regrettably, they are all too common.

    What’s wrong here are the remarks from a leading judgement that support the notion that children only need to see their father from “time to time” and that such visits ought not to be “burdensome” on them. MacFarlane asserts as an ideal that children should come to know their father as well as their mother. A noble and laudable aim, no one would argue with that. What he didn’t say because he couldn’t, was exactly how children would come even close to doing this when they only ever see their father from “time to time”.

    And that’s considered a leading and therefore definitive, judgement! I call it for what it is – a nasty joke.

    In time, we will come to accept a revisionist view of the evolved state of family law over these decades, for the divisive, discriminatory anti-father reality it has become.

  3. JamesB says:

    Yes, I agree that Lord Justice McFarlane’s comment is confusing and contradictory.

    At least there is no mention of cafcass being the answer.

  4. JamesB says:

    Not sure what the answer is. It cetainly doesn’t lie within the MCA 1973! Which is detrimental as Stitchedup says or the CSA.

    I think the answer doesn’t lie with the courts. I agree with them on that. That courts say conduct is irrelevant and marriage vows don’t matter effectively menas than the courts have given up. So, essentially people will increasingly (rightly) avoid them for ancillary relief and disputes regarding children and sort out their own affairs without these ‘professionals’ messing them up and making things worse. I certainly will not be advising my son to have any exposure to these places and will tell him to avoid them like the plague.

  5. JamesB says:

    In case I wasn’t clear enough, avoid the England and Wales family court like the plague. I advise everyone I care about this also. They make things a lot worse, not better.

  6. JamesB says:

    Avoid the CSA like the plague also.

  7. u6c00 says:

    John I don’t see that your conclusion “the courts (or at least some of them) are prepared to do everything they can to reach a satisfactory conclusion.” is supported by your examples.

    Example 1: The court could have asked the father to give evidence on oath about the suitability of his accommodation, with the full knowledge that he could be found in contempt if he misrepresented the truth.

    Example 2: The court could have (and according to the appeal court should have) spoken to the child in the course of proceedings.

    Rather than say that the courts did everything that they could, it seems clear that exactly the opposite is true.

    • UnhappyParent says:

      u6c00 – November 14, 2013 at 6:40pm

      Our case almost mirrors Child H. The court have ordered supervised quarterly visits with their grandmother, despite the fact that, out of court, she is not the sort of person you would want anywhere near your child (either in influence or presence). They actually said that even a violent drug addict would be given visits, all in the name of compromise and a “satisfactory conclusion”. Well, our children don’t want to go and we are now back at court. The last one nearly cost me my life (had a stroke), is a nasty, vindictive, violent grandparent really more important than having BOTH loving parents in the children’s lives?

      Would be interesting to know the outcome of this court case. We are objecting to the new application (again), await CAFCASS to investigate, again and maybe this time the court will actually listen to what our children are saying. In fact, maybe they will actually ask them, this time.

      Two children with special needs, one psychotic (I am not jesting) grandparent and a very strained marriage. The latter is only as a result of this bloody court case…five years and counting. As Litigants in Person, we find it very frustrating.

      Rant over.

      Beep Beep courts…

  8. Anonymous says:

    It’s a common strategy in this industry to try and displace the blame onto the parents. I’ve seen it happen a lot. It’s an effort to excuse oneself and wipe one’s bloody hands clean.

    The fact of the matter is that if you build a system that is innately discriminatory and lends itself to the most flagrant abuses, that is precisely what you will get: discrimination and abuse.

    If you don’t want to see people kill each other, you don’t make firearms readily accessible to the public, do you? (Except in Loonyville, USA perhaps).

  9. Luke says:

    I find it rather ironic that we are talking about contact orders – and yet in the 2 cases highlighted 1 of them doesn’t even have the biological father involved !

    As for the case where the father is involved, the judgement by the courts seems quite reprehensible.
    It is admitted that the child enjoys seeing their father but is still not allowed to stay with him overnight because the conditions the father is forced to live in might not be good enough. Well, they’d have to be pretty bad to be not good enough to stay the odd night, and if they are so bad it should be investigated why the father has suddenly become so very poor and what can be done – NOT just do sod all and deny overnight stays.

  10. Anonymous says:

    It certainly does raise the question as to why a single father cannot get support for housing when this is pretty standard for mothers after divorce. It seems that here too institutional sexism is operating.

  11. Yvie says:

    The single father does not get any support at all from the state. Once a Court ordered shared residence in place, the State has an obligation, in my opinion, to treat both parents equally with regard to child benefit, child tax credit and working tax family credit. All these benefits go automatically to the mother, even though the father may share the care of his children for almost 50% of the time. Theses benefits should be divided between the parents on a pro rata basis. So many politicians waffle on about keeping single parents out of poverty, by which they mean single mothers. A father with a shared residence order has to provide a home for his children as well as to feed and clothe them, in exactly the same way that their mother does. In addition he will also have to pay child maintenance to his ex wife. For tax purposes, a father in this position is taxed as though he has no dependants, though quite clearly with a shared residence order, this is not the case. Fathers on low incomes must find this a tremendous struggle, particularly if they have little or no family support.

  12. Andrew says:

    It’s difficult to fault Yvie’s logic, isn’t it?

  13. Paul says:

    Nice points, Yvie. This is what happens when that lack of support for fathers you so rightly highlight is combined with leading judgements from senior judges like L J McFarlane which build the jurisprudence on a belief that a father seeing his children “from time to time in a way that is not burdensome to them” is good enough:-

    I happen to be one of those fathers. These judges, along with Timpson, the Children’s Minister, seem to think that creating a suitable impression in the Children Act and tinkering around with the procedural rules is going to resolve the problem. Predictably the problems in private law will now worsen; any mother who fails to exploit the new child safety clauses is missing an open goal.

  14. Stitchedup says:

    It is so bloody obvious what’s going on here it beggars belief that politicians and judiciary are not rushing through legislation to stem the tide/Tsunami.

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