On Sunday two men scaled the roof of a building at Buckingham Palace in a protest over fathers’ rights. They were protesting in particular about the way in which, as they see it, the family justice system encourages parents to turn their children against the other parent. It is easy to imagine that one of the men could have been the father in Re H (Children), who believes that the mother of his two boys purposely alienated them from him. As a result, he has not seen them for nearly five years, despite protracted litigation over his contact with them for most of that time. The family justice system, it would seem, has failed him.
Re H (Children) is in many ways a fairly typical acrimonious children dispute. As Lord Justice Tomlinson said (reading the judgment prepared by Mr Justice Cobb), it “does not raise any point of principle, but it illuminates once again the sad outcome for families when parents separate in acrimony, failing to insulate their children from their disputes.” However, I think that there are a number of lessons to be learned from the judgment.
The first thing that struck me when reading the judgment goes back to what I said in the first paragraph above. It is a trite thing to say, but there are always two sides to a story. Yes, it is possible to interpret the case as another example of the family justice system failing a father seeking contact with his children. On the other hand, it is equally possible to interpret it as a case of a father who harassed the mother, alienated the children through his own actions and then abused the system by making repeated applications to the court, to the distress of both the mother and the children. Of course, it is up to the court to determine where the truth lies.
Other things that I noted, or that are noteworthy, from the judgment included the following:
- The judgment concerns the father’s appeal to the Court of Appeal against the refusal of the court to enforce an order for indirect contact. As we see so often these days, the father was not represented (the mother did not appear at all, stating that she would find it too stressful to attend). Once again, therefore, the court did not have the benefit of legal argument. The report does not say whether the father has had legal representation earlier in the proceedings, but it appears that he did not, as he had the assistance of a McKenzie friend at a hearing in 2014. Whether the father would have fared better had he had full representation we can only speculate, but see points 4 and 7 below.
- Along with lack of representation, the case also demonstrated the other curse of family proceedings: delay. An application by the father for direct contact took 22 months to reach a final hearing. Unfortunately, the reason or reasons for this delay are not stated, but they were not understood by the Court of Appeal. Ultimately, the delay of course played against the father – by the time of the order under appeal the older child was 16, and no order could of course therefore be made in respect of him unless there were exceptional circumstances. The father accepted that there were no such circumstances and therefore did not pursue his application in respect of that child.
- In 2012 the two boys indicated they did not wish to see their father. At that time a psychologist recommended that:
“It may be necessary to do some work with [the boys] to ascertain the basis on which they are each making their decisions as well as the degree to which their views may have been influenced by the adults with whom they regularly come into contact.”
Unfortunately, that work was never done, missing an opportunity to get to the truth of the matter, as mentioned above.
- The father’s application for direct contact was heard in December 2012, when a consent order was drawn up providing for indirect contact only. At a later hearing a judge praised the father for taking the decision not to pursue direct contact. However, the father told the Court of Appeal that he regretted entering into the agreement, believing that it was part of a plan to work towards him having direct contact. This is the sort of misunderstanding that can happen if the intentions of the parties are not made clear, and obviously is more likely to occur if one or both of the parties are not represented.
- On the 4th of July 2014 the court made an order under section 91(14) of the Children Act prohibiting the father from making any further application for 12 months. The judge expressed the view that it was in the children’s best interests “… for there to be some break, some reassurance, some sense for those boys that there should not be any of these further applications for a while.” Notwithstanding this, just two months later the same judge gave directions granting leave to the father to make an application to enforce an indirect contact order and for the preparation of a ‘wishes and feelings report’ on the boys from Cafcass (the Court of Appeal considered it “highly doubtful” that such a report should have been ordered, given the circumstances). Unsurprisingly, the Court of Appeal found the making of these directions to be incomprehensible.
- Following this, the Cafcass officer did not in fact see the boys, as the mother informed her that they were very angry with their father for continuing with proceedings and were not prepared to engage. This seems to have been accepted by the judge without further investigation and he then dismissed the father’s enforcement application. It is against this decision that the father appealed to the Court of Appeal.
- The Court of Appeal pointed out that the consent order that had been made in 2012 should not have imposed upon the children the burden of deciding whether or not to see their father. This is a ‘trap’ that I suspect many parents fall into, especially when unrepresented.
- The Court of Appeal also expressed the view that an ‘indirect contact only’ order drawn up in 2013 had been incorrectly expressed, stating that there should be no direct contact, when it should have stated that there be “no order in relation to direct contact”. As the Court of Appeal stated, there is a material difference between the two things.
- As in previous cases, there were issues with the section 91(14) order. Firstly, the judge did not give proper reasons for making the order and secondly the order did not specify the applications to be covered by the order – an absolute prohibition on making any application to the court should not generally be contemplated under section 91(14).
- Lastly, as to the father’s appeal, the order for indirect contact did not actually include anything for the court to enforce: it provided that the father could send cards etc. to the boys, but it did not, for example, provide that the mother must accept delivery of them. Accordingly, the judge could not be criticised for rejecting an application to ‘enforce’ an order which was not capable of effective enforcement, and the father’s appeal was therefore dismissed.
The full report of Re H (Children) can be read here.