Failure to apologise for past conduct doesn’t preclude a father from seeing his children

Family Law|February 24th 2016

When lawyers refer to a previously decided case they will talk about its ‘ratio’. The ‘ratio’ of a case, or to give it its full Latin name the ‘ratio decidendi’, is the reason for the court’s decision in the case. It is important when the previous decision is a precedent which a court in a later case is bound to follow – that court must use the same reasoning as the earlier court in reaching its decision.

Sometimes, though, a judgment will throw up another point that is of more interest than the ratio. Such a situation occurred (in my opinion) in the Court of Appeal decision Re K (Children), handed down last week.

The ratio of Re K (Children) was a principle regarding contact that we have come across many times previously, and that will be well known to all family lawyers. As mentioned in the judgment, the principle was enunciated by Lady Justice Macur in the earlier case Re M (A Child), as follows:

“The starting point should be that the welfare of the child requires ongoing and meaningful contact with both parents. This principle should only be displaced for compelling reasons on the clearest of evidence and only then when all reasonable avenues of promoting safe contact, both physically and emotionally for the child, have been considered and rejected.”

That principle is, of course, a very important one, but when a principle is already well known it is, I would suggest, of only passing interest. However, there was something else in the judgment that is not so well known (at least not to me), even if it may have been stated previously.

The case concerned two children, a girl now aged 6 years 9 months and a boy now aged 5 years and 4 months. Their parents separated in October 2013 when the mother left the family home with the children. Their father, who has not seen them since, applied for a contact order in the following month. The mother made allegations of domestic violence and a fact-finding hearing to investigate those allegations eventually took place in November 2014 (how often do these reported children cases include inordinate delay in the progression of the case?).

At the fact-finding hearing the judge, Mr Recorder Chippindall, found most of the mother’s allegations of direct physical violence unproved. He did find one such allegation to be proved (that the father had struck the mother on an occasion at least five years earlier), but he did not accept the mother’s account of routine violence. He found that on the evening before the mother left the children saw very aggressive behaviour from the father directed towards the mother, but again he held that there had not been physical violence. He concluded that the father had exhibited some controlling behaviour over the mother and that there had clearly been aggressive confrontational behaviour by the father which had probably psychologically browbeaten the mother, but no more.

In a subsequent report the children’s guardian noted that the children had seen their father’s aggressive behaviour which would have been frightening to them and that the older child did not wish to have direct contact with her father. The guardian took the view that if the children were ever able fully to trust the father again, he needed to acknowledge that they had witnessed frightening behaviour, and to apologise to them for his behaviour.

The father did apologise to the children, on two occasions. Firstly, he sent them a balloon which had on it the words “I love you and miss you so much, I am sorry for everything upsetting”. Secondly, he told the court at the final hearing of his contact application that there had been arguments during the course of the marriage and that, if he had caused distress to the children, he would like to apologise to them. The recorder, however, felt that this latter apology was not genuine and that the father was simply saying what he thought the court wished to hear.

The recorder concluded that the father had not acknowledged that he had acted badly and that accordingly if direct contact were to take place he would be a subversive influence on the children and mother’s care of them. Direct contact would therefore pose a “very great risk of harm”. In these circumstances, he made an order providing for indirect contact only. The father appealed.

Giving the leading judgment of the Court of Appeal Lady Justice King said that the recorder seemed to have taken the view that failure on the father’s part to make a genuine and heartfelt ‘apology’ to both the mother and the children precluded him from seeing his children again. She went on to find that the recorder had not considered all of the available alternatives before abandoning hope of achieving contact (such as the father attending the Domestic Violence Perpetrators Programme), and therefore allowed the appeal.

In a concurring judgment Lord Justice Vos said:

“As Lady Justice King has recorded, the recorder seems to have taken the view that the father’s failure to make a genuine and heartfelt apology to the mother precluded him from seeing his children. I cannot accept such a starting point. It may well be that a repentant father would offer a reduced risk of harm to the children, but it is that risk and the welfare of the children generally that are important in contact cases, not any moral judgment of either parent. As has been often pointed out, parents are of all kinds and demonstrate all levels of moral virtue. It is not the court’s job to judge a wrongdoing parent for the sake of doing so, because it will, in all but the most exceptional circumstances, be in the children’s best interests to see their parents. If the failure to apologise posed a risk to the children, that might have been a different matter, but that does not seem to have been the case here. The recorder was wrong to impose a pre-condition of repentance and apology. Those matters were relevant, but only insofar as they had a bearing on the welfare of the children.”

In short, provided that the failure to apologise does not of itself pose a risk to the children, it should not be a prerequisite to the re-establishment of contact. An important point, I think. What matters is the welfare of the children and the safety of the mother and the children, not whether the father shows the required level of contrition.

The full report of Re K (Children) can be found here.

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  1. D says:

    Very interesting summary of what sounds like an upsetting case for all.

    “The recorder, however, felt that this latter apology was not genuine and that the father was simply saying what he thought the court wished to hear.”

    That’s quite a judgement for one individual of the court to make; one wonders how objectively as well. For example why would the father risk saying anything other than what he (or his counsel) expected that the court would want to hear.

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