John Bolch on breaking the cycle of incessant litigation

Family Law|November 19th 2014

Incessant litigation seems to be one of the recurring themes of judgments I have been reading lately – see, for example, my post on Monday.

The latest is F (Children), handed down by the Court of Appeal on the 13th of November.

The case concerned a father’s appeal against orders made in long-running proceedings regarding arrangements for his two children. The appeal itself is not what I want to mention here, but rather the litigation leading up to it.

The father and the mother separated in 2007 and the mother then applied for a residence order. A consent order was made in August 2008 setting down arrangements following their divorce, granting residence to the mother and extended contact to the father.

A matter of just days later, however, the father applied for a penal notice (a warning stating a court order has been broken), as well as a residence order for himself. The whole process was therefore recommenced.

So proceedings continued, with allegations being made and both parents raising concerns regarding each other’s care of the children. Inevitably, this began to have an adverse effect upon the children and the local authority became involved, taking one of the children into care.

In April 2010 a shared residence order was made in respect of the other child, ‘CF’. The order further provided that, pursuant to section 91(14) of the Children Act 1989, neither parent would be permitted to apply for another order in relation to either child until the 16th of April 2012.

The parties were not, however, able to keep out of court for that long. In February 2011 the father failed to return CF to the mother and the mother had to make an application to the court for his return.

In September 2012, the father made an application to the court for a prohibited steps order in relation to CF, in order to prevent him from attending a proposed appointment with the Child and Adolescent Mental Health Service.

Meanwhile CF, who had been visiting his father regularly, was now becoming reluctant to attend, culminating in a telephone call from a doctor from the out—of-hours clinic on the 31st December 2012, in which CF indicated that he would not go for contact with his father. To all intents and purposes, there has been no contact between CF and his father since that time.

On the 4th of February 2013, the father issued a further application seeking an enforcement order in relation to the earlier orders, and a variation (change) of residence. The application was refused and a full residence order in relation to both children was made to the mother. The District Judge ordered that there be only indirect contact between the children and the father. The District Judge also removed the father’s parental responsibility in relation to both children.

The father appealed against the order removing his parental responsibility; the mother cross-appealed in relation to the District Judge’s failure as she saw it to make a further s.91(14) order. The appeals were heard in April 2014, when the judge made a residence order in respect of both children in favour of the mother, an order for indirect contact in favour of the mother and another section 91(14) order, prohibiting further applications to the court without leave until the children attain 18 years. The father was granted limited parental responsibility.

Completing the sorry saga (at least for now), the father appealed against those orders, to the Court of Appeal. His appeal was dismissed.

All in all, I think most would agree, a pretty disastrous chain of events for all concerned.

Clearly, incessant litigation is not the answer to resolving arrangements for children. Every effort should therefore be made to avoid it, but that can be easier said than done, particularly in the ‘heat of battle’. After all, it is entirely understandable that when a party thinks they have been wronged their first thought is to go back to court to have that wrong put right.

What can be done to avoid incessant litigation?  Well, I don’t think there is any magic formula, but I have a few ideas.

  • The first thing to do is to take a step back. Resist that temptation to rush back to court. Recognising that it is time to do this is perhaps the most difficult part of the process, akin to ‘counting to ten’ in the heat of an argument. Don’t, for example, listen to that well-meaning but misguided friend or relative who is urging you ‘get what you are entitled to’. Instead, you should take the best advice you can. I realise that in these days of no legal aid that can be easier said than done, but the advice of an expert family lawyer can be worth its weight in gold – provided you follow it.
  • Don’t chase lost causes. If you are determined to go back to court, stop first for a reality check. Does your application have a real prospect of success? Even if it does, will it actually make things better? Again, good advice here is essential.
  • Consider alternatives to court, such as mediation. Even if mediation has been unsuccessfully attempted before, it could still succeed in a new situation.
  • Above all, put your differences with your ex to one side and put the children first. You may never be able to be friends again with your ex, but you and they will always be the parents of your children, whether you like it or not. You must therefore be guided not by thoughts of revenge, or by what you consider to be your rights, but by what is best for your children. I know that this sounds patronising, but if you are genuinely motivated by the interests of your children, then you are likely to find that those interests will not be met by further litigation.

As I have said, there is no one-size-fits-all solution, no magic formula that will break the cycle of incessant litigation in all cases, but if you have become caught up then hopefully the above ideas, or some of them at least, will help you take a step back.

Photo by erik jaeger via Flickr under a Creative Commons licence 

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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