That must be one of the most obvious post titles I have ever written. It has been said so many times before and I will say it again: there are no winners in contested children disputes, only losers. And one of those losers is, of course, the child at the centre of the dispute.
Getting this message across to the parents is, I believe, one of the primary duties of judges, lawyers, Cafcass officers and all other professionals who deal with private law children disputes. Ultimately, however, those professionals can only pass on the message. Whether or not both of the parents choose to accept it is another matter.
If they do not accept it and are determined instead to proceed with open warfare over their children then, ultimately, there is little that the court can do to stop them. Such behaviour, however, will be a source of immense frustration to the court, which has no interest whatsoever in winners and losers, only the welfare of the child. Such parents must therefore expect the court to take a dim view of their behaviour.
And of course the more heavily contested the case is and the more antagonistic the parents are towards one another, the worse it is – not only are all involved losers, but the damage caused can have appalling effects for years to come. In fact, it is no exaggeration to say that the damage can leave scars on those concerned, including the children, for the rest of their lives.
An example of just this sort of situation occurred in the Court of Appeal decision Re Q (A Child), reported this week. The case concerned private law proceedings regarding a father’s contact with his son, who was born in September 2007. The proceedings started way back in May 2008 and have been going on ever since “driven by the father’s understandable desire to have a meaningful relationship with his son and prolonged by the seemingly insuperable difficulties in achieving that with more than fitful frequency.”
I’m not going to go into the details of the case – no doubt that will occur elsewhere – but for the purpose of this post the basic facts were as follows.
The appeal before the Court of Appeal related to the most recent of numerous hearings that have taken place over the years. The hearing took place before His Honour Judge Glenn Brasse, sitting in the Central Family Court, in August 2014. Judge Brasse had to decide how to progress the case, in the light of what he found to be manifestly false allegations made against the father and evidence that was overwhelmingly in support of the view that the child had been influenced by the mother’s hostility towards the father. In the event Judge Brasse decided not to order contact but instead ordered the parents to co-operate in the referral of the child to a children’s centre for an assessment of his emotional and psychological wellbeing, and for such treatment as the staff at the centre recommend.
The father, fearing that Judge Brasse’s order brought the proceedings to an end without making a child arrangements order, appealed against the order. The Court of Appeal, however, dismissed the appeal. Giving the leading judgment the President found that Judge Brasse was entitled to do as he did and, indeed, said that he would probably have done the same himself. Judge Brasse was not abdicating his responsibility to do everything in his power to attempt to promote contact, and was not abandoning the ongoing judicial duty to reconstitute the relationship between the child and his father.
All of this may, of course, sound like a victory for the mother and her efforts to thwart the father’s contact with his son. However, the President had this to say to her:
“I would not want the mother to think she has won. She has not. There are no winners here, only losers. [The child] is far and away the greatest loser – and that, in overwhelming measure, is because of his mother’s behaviour. I urge her again, as I urged her during the hearing, to reflect on Judge Brasse’s findings. They are an indictment of her parental failings hitherto. She, and [the child], now stand at the cross-roads. It is vital, absolutely vital, that she participates, with [the child] and with the father, in the therapy which is at present their only hope for a happy future. I repeat what I said during the hearing. Sooner or later, and probably sooner than she would hope, [the child] will discover the truth – the truth about why he is not seeing his father, the truth about the harm his mother has done to him, the truth about his father, the truth that his father is not the monster he has been brought up to believe he is, the truth about, and the dreadful details of, the litigation. When he discovers that truth, what is his mother going to be able to say to him? How is she going to begin to justify her behaviour? She needs to think very carefully about how she is going to handle that day, not if but when it comes. Whatever she may think about the father, does she really want to imperil her future relationship with her son? Run the risk of being disowned by him? Run the risk of never seeing her own grandchildren? I urge her to think, long and hard, and to act before it is too late.”
It is not the first time that we have seen such a warning in a judgment and, sadly, I’m sure it will not be the last. All that can be done is to keep repeating the message, in the hope that more parents will heed it.
The full report of Re Q can be read here.