Earlier this week I wrote about the presumption of parental involvement. The presumption says that when a court is considering whether or not to make an order relating to a child it is to presume, unless the contrary is shown, that the involvement of both parents in the life of the child concerned will further the child’s welfare.
I concluded that even if it is introduced the presumption may make little difference to the decisions that the family courts make, or the matters that they consider when coming to those decisions, because the courts already proceed on the basis that a child’s welfare is best served by having as full as possible a relationship with both parents. A recent Court of Appeal case demonstrates this quite well, even though ultimately the father failed to obtain direct contact with his children.
The case of W (Children) has actually been to the Court of Appeal twice. I do not propose here to go into the detail of the two Court of Appeal judgments, but rather just to set out the essentials. For those who are interested, the first Court of Appeal judgment can be found here and the second one here.
The case involved two children, both girls, now aged 10 and seven. Their parents had not been married, but had lived together. They separated in 2008, the mother leaving the family home with the girls. Soon after the separation there were problems with the father’s contact, and he issued a contact application.
A contact order was made in January 2009 but contact “did not materialise reliably”. The last contact that took place was in April 2009. After that, contact broke down, with the children maintaining that they did not want to see the father and becoming distressed when the topic of contact was raised.
A child psychologist reported in September 2010. In essence, she considered that the older child’s refusal to see her father was part of a complex defensive strategy which she had developed as a result of the distress she had experienced. The psychologist advised that both children would require “long term desensitisation to contact”.
A final hearing took place in January 2012 before Her Honour Judge Marshall in the Swindon County Court. She stated (quite rightly, as Lord Justice McFarlane was later to confirm) the general principle “that contact with both parents is in the best interests of children, unless there are compelling reasons to the contrary”. However, she considered that there should be no order for direct contact, primarily because of the mother’s inability to meet the children’s needs by supporting contact.
The father appealed. His appeal was heard by the Court of Appeal in May 2012. The Court of Appeal allowed the appeal, essentially because the court had not explored all avenues at re-establishing direct contact.
After that appeal a “great deal of work” was done in an attempt to get contact started. However, these efforts were not successful and the matter eventually went before Judge Barclay in the High Court.
The children were still making it clear that they did not wish to see their father. Judge Barclay found as a fact that the mother had not set out deliberately to confound the contact but equally found that she bore some responsibility for the situation that the girls found themselves in. The mother had, however, engaged in the ‘desensitisation’ process. As that process had not managed to overcome the children’s objections to seeing their father, Judge Barclay was only prepared to order indirect contact, for example by way of letters and presents from the father to the children.
The father appealed again, but this time the Court of Appeal did not find in his favour. Giving the leading judgment Lady Justice Black said that Judge Barclay had proceeded on the correct basis, giving great weight to the need to secure a relationship for these children with their father and not being prepared to countenance sabotage by the other parent. However, attempts to overcome the obstacle to contact had by then been going on for a long time and could harm the children if they were continued. All possible avenues had by then been explored appropriately and it would be contrary to the welfare of the children to continue. Accordingly, the father’s appeal was dismissed.
As will be seen from the above (and more so from a study of the two judgments), every professional involved proceeded on the basis that it is best for children to have a full relationship with both parents, and every reasonable avenue was pursued to that end. Sometimes, though, the welfare of the children dictates that that ideal is not necessarily the best thing for them.
Photo by Salihan Laugesen via Flickr under a Creative Commons licence