Perpetual parental conflict

Children|July 16th 2015

I wrote here on Tuesday about a case in which the parents appeared to have managed to put aside their differences for the sake of their daughter. It was a rare glint of light in the usual darkness of parents warring over their children. Unfortunately, it did not take long at all to come across another case of seemingly perpetual parental conflict.

In fact, it was only about twenty-four hours after I wrote that post that I came across the Court of Appeal judgment in T (A Child) (Suspension of Contact). The case essentially concerned a father’s appeal against an order suspending all contact between him and his daughter (‘E’) indefinitely and (under section 91(14) of the Children Act) prohibiting him from making any further applications in respect of E, without the leave of the court, until December 2019, when E is ten years old.

The judgment of the Court of Appeal was handed down by Lord Justice Tomlinson, although it was actually prepared by Mr Justice Cobb. He did not go into the detail of what he called “the truly dreadful chronology of litigation, and the behaviours of the adults towards each other and the professionals” in the case, but he did say the following:

“The multiple court hearings, and judgments and orders which have flowed from them, reflect an extraordinarily high degree of conflict in the parental separation. By the time the proceedings were listed before HHJ Hayward Smith QC on 12 December 2011, he expressed a concern that the case was “in danger of spiralling out of control”, a fear which has in our view regrettably all too obviously come to pass. Not only have the parents been in relentless conflict with each other, but the father has also raised repeated and serious allegations of professional misconduct against E’s court-appointed Guardian, against counsel instructed in the case at various times, and against some of the judges.”

Against that backdrop, the Court of Appeal was conscious that if it allowed the appeal then it would be consigning the parties to a further round of litigation concerning E. Nevertheless, that is what it did, finding (amongst other matters) that the judge should not have made the order in the absence of the father; that the order did not give sufficient consideration to either the welfare checklist or the father’s Article 8 right (to respect for family life). In addition, the Judge had not given a proper explanation of their rationale for the making of the section 91(14) order. Accordingly, the matter was remitted to a Judge of the Family Division for rehearing.

Obviously, making orders stopping a child’s contact with a parent and restricting further applications for such a long period are extremely serious steps for a court to take. The court must therefore follow the proper procedure and not just give proper consideration to all of the relevant factors, but also be seen to have done so. The decision of the Court of Appeal therefore comes as no surprise in the circumstances surrounding the judge’s order. Nevertheless, one must have sympathy for the judge, who obviously wanted to bring these long-running proceedings, which are clearly having a detrimental effect upon all concerned, to some sort of conclusion.

Now, of course, the parties will have yet a further opportunity to proceed with their conflict. If they choose to do so, however, there will be no winners, and there will very definitely be at least one loser: their child. For her sake, one must hope that they seize this chance to put aside their differences with each other and their frustrations with the system, and take a constructive approach to find the best outcome.

The full judgment in the case can be read here.

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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