Judges need time to make decisions

What does a court do when all else seems to have failed to resolve a long-running and acrimonious dispute over a father’s contact with his children – one in which the mother has shown implacable hostility not just to contact, but also to the conclusions of the court? Well, one thing that the court can do is exercise its power to remove a child from the mother under an interim care order. I will go into the details of how this happens in one moment.

That is what occurred in the recent case K (Children). The case concerned two boys, now aged 14 and 12. Their parents separated in 2004 and the boys remained with their mother. Their parents have been litigating over the father’s contact with them ever since. I will not go into the complicated history of the father’s efforts to secure contact, but the recent events were as follows.

On the 15^th of May 2012 an order was made by consent providing for the boys to spend alternate weekends with their father. That contact broke down in January 2013. There was then a period during which the boys had no contact with their father, but on the 24^th of March this year the court made an order reinstating the alternate weekend conduct, and also providing for a conditional residence order in favour of the father in the event that contact did not take place (such an order is another tool available to the court, to try to ensure that its orders are complied with).

There was one contact visit in accordance with the order, but then contact broke down once more, due to the boys refusing to see their father again. Counselling and guidance that the court had ordered the mother to attend ‘to assist with establishing and maintaining the father’s contact with the boys’ also broke down. The mother applied (not for the first time) to the court to suspend the contact order and the implementation of the conditional residence order. The father cross applied again to enforce the order.

On the 23^rd of May the mother’s application was refused. The judge made findings sufficient to come to the conclusion that both of the boys were suffering significant emotional harm and he therefore directed an investigation into their care by the local authority.

The conditional residence order was implemented and the boys therefore went to live with their father on the 25^th of May. However, in the early hours of the 27^th of May they ‘absconded’ from their father’s home and were found in the care of a former child minder.

The matter returned to the court on the 3^rd of June, as a matter of urgency. The court ordered the removal of the boys from their mother’s care. It placed the older boy with foster carers under an interim care order and the younger boy (who, it appears, was not so hostile to his father) went to live with his father under a child arrangements order. These orders were implemented late at night, in circumstances that were distressing for all involved.

The mother appealed against the orders, and her appeal was heard by the Court of Appeal on the 30^th of July.

Before I proceed, a quick look at the law relating to the order made in respect of the older boy. Under section 37(1) of the Children Act the court may, if it appears that it may be appropriate for a care or supervision order to be made with respect to a child, direct the ‘appropriate authority’ to undertake an investigation of the child’s circumstances. This is what happened here on the 23^rd of May. Note that the court can make this direction without there being any application by any of the parties for such a direction, although here the boys’ mother had asked for it.

Now, once such a direction has been made, the court can, under section 38 of the Children Act, make an interim care order for up to eight weeks, and under the care order it can (for example) place the child with foster parents. This is what occurred here on the 3^rd of June. Note that the order can be made before the investigation has been completed.

The leading judgment in the Court of Appeal was given by Lord Justice Ryder. Whilst he clearly had sympathy for the position that the judge found herself in on the 3^rd of June (and considerable criticism for the conduct of the parents), he concluded that she had been wrong to make the decisions that she did. The issues had not been given proper consideration. “If there is any lesson to be learned by everyone involved”, he said, “it is that a judge has to give him or herself time regardless of what anyone else wants that judge to do.” Further, it was inappropriate to use (or to be perceived as using) an interim care order or a conditional residence order as a coercive or punitive measure, rather than as a protective step grounded in the best interests of the child concerned.

The other Court of Appeal judges, Lord Justice Vos and Mr Justice David Richards, agreed. Accordingly, the orders made on the 3^rd of June were set aside and the matter was remitted for hearing by a judge in the High Court, once the section 37 report is available. Meanwhile, the boys were returned to their mother (with defined contact to the father), although an interim care order was made for their protection.

There is much to be taken from this judgment, but I will end with this warning to parents from Lord Justice Ryder:

“When parents delegate their parental responsibility to the court to make a decision, that decision will be in the form of an order. The court cannot countenance its orders being ignored or flouted unless an appropriate and lawful agreement can otherwise be reached. That is not simply to preserve the authority of the court, it is to prevent continuing and worsening harm to the children concerned. Parents who come to court must do that which the court decides unless they agree they can do better and there is no court order that prevents that agreement.”

Photo of the Royal Courts of Justice by Ronnie Macdonald via Flickr