Staying the course for contact

Family Law|November 6th 2014

Applying for contact with a child can be a slow and difficult process (I realise that ‘contact’ now comes under child arrangements orders, but for the sake of simplicity in this post I am using the old terminology). I recall on many occasions whilst I was practising having clients who could not see the need for their contact applications to proceed so slowly and having to persuade them not to give up. Unfortunately, however, sometimes re-introducing an absent parent into the life of a child has to be a gradual process.

Such was the case in F (Children; Contact, Name, Parental Responsibility) which, sadly, turned into a model lesson in how not to conduct a contact application.

The judgment, handed down by His Honour Judge Duggan in September was, as he described, a further instalment in long-running private law proceedings concerning the welfare of two children, twin boys born in 2011. Their parents married in 2008 and separated in April 2013. Following the separation, the children remained with their mother but there was limited contact for the father in May and September 2013. His last contact took place under Cafcass observation on the 28th of November 2013.

On the following day the court made an order which was intended to be a final order, providing for the father to have professionally supervised contact. However, the father had indicated that he would not take up supervised contact and he sent a message to the court requesting that his parental responsibility be removed in its entirety.

The father then applied to set aside that order. This resulted in a further order, made on the 28th of February 2014. That was again intended to be a final order and provided that there should be no direct contact with the father except under professional supervision. The father had again made it clear that the supervision of contact was not acceptable to him but he was given liberty to apply for the definition of the supervised contact in the event that he changed his mind and wanted to take it up. The order also made provision for indirect contact.

After that order no contact took place, and the father did not take up the option of indirect contact. Instead, he requested direct contact to take place on four specific separate occasions, but this request was not compatible with the terms of the 28th of February order.

The matter returned to the court when the mother made applications, including one for permission to take steps for the boys to be known by a different surname. At the same time the court reconsidered the issue of the father’s contact.

At the outset of the hearing the father once again indicated that he was not prepared to tolerate the supervision of contact. However, on reflection and with advice, he adjusted his position, saying that he would participate in supervised contact but only if it was laid down that it should take place every six weeks or so and that every six weeks there should be three or four consecutive part days for contact with the boys.

Judge Duggan was not persuaded that he should proceed as the father proposed, saying of the father:

“He has, in the course of the hearing, made it clear that if I am not persuaded to his viewpoint, he will walk away, he will reject indirect contact and he has expressed the hope that his parental responsibility will be removed. In fact, the hearing has been marred on a number of occasions by the father threatening to withdraw but he has been persuaded by the helpful intervention of his McKenzie Friend to return and to participate in the hearing on a proper basis.”

However, the father’s “bizarre conduct” (as Judge Duggan called it) went far further than just threatening the court if he did not get his own way. It included:

  1. Running a protest blog presenting himself as a victim, and including extensive details about the case, including the names of the children.
  2. Contacting all 723 providers of nursery education in the mother’s home county and describing the mother to them as “a drug-addicted alcoholic surrogate who has suffered from sexually transmitted diseases”, because he did not approve of the mother’s approach to the choice of nursery.
  3. Placing online all the details of the biological origin of the children, who were born after a fertilisation process involving two anonymous donors.

Needless to say, this sort of behaviour did not help the father’s case. In the circumstances, Judge Duggan accepted the argument of the guardian that the father must establish through the passage of time that this kind of conduct had stopped before it would be possible to resume direct contact. He therefore made an order for indirect contact only.

As to the mother’s change of name application, this was granted, primarily to protect the children from the consequences of the father seeking to find them, and the consequences of him publishing detrimental information about them. The father once again threatened to walk away from the children if a name change was permitted.

Judge Duggan concluded with a word addressed to the father:

“My message is that the door to contact with these boys remains open if but only if the father is able to take a different approach. Otherwise, I am afraid, you will be depriving your boys of a relationship with their father which was obviously of value when it was exercised in the past.”

When I began writing this post I intended it to be simply a warning about how not to conduct a contact application. Instead, I think the message should be more positive: as Judge Duggan said, and as has been said many times previously, it will almost always be in the best interests of a child to have contact with a parent from whom they are separated, and the courts will therefore usually work towards the end of re-establishing full contact. However, the process of moving from no contact to full unrestricted and unsupervised contact may, usually rightly but sometimes wrongly, be taken by slow incremental steps. The parent seeking contact must therefore be prepared to stay the course, complying with the wishes and directions of the court, even if they disagree with them. If they do so, then both they and, more importantly their children, will be the ultimate beneficiaries.

Photo by Sasha Lynn via Flickr

The blog team at Stowe is a group of writers who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. Guest contributors also regularly contribute to share their knowledge.

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