Not just another failed contact application

Family Law|November 22nd 2016

As I’ve mentioned here before, I look at a lot of family law cases, at least glancing at hundreds every year. Goodness knows how many cases I’ve looked at since I began studying law forty years ago. Despite that, I still come across cases dealing with issues that I’ve not come across before. I guess that is a product of the wide range of human experiences that our family courts deal with.

Take, for example, the case Re K, published last week on Bailii. OK, I probably came across the earlier judgments in this case (as Mrs Justice Theis pointed out in her judgment, the case has a considerable, and sad, litigation history, going back to 2007), but we’ll leave that to one side.

Re K concerned an application by a father for contact with his 32 year old son. Yes, you read that correctly. The son was 32 years old. The basis of the application was that the father maintained that the son lacked capacity to be able to decide contact. The father further alleged that his son was being pressured not to have contact with him by his litigation friend, in collusion with his aunt (with whom he was having contact), or at least that others were making decisions for him, and that as a result his human rights and those of the family were being breached because there was no contact.

So, what was the son’s condition? One of those earlier judgments told us that he had “a diagnosis of mild mental retardation”, and that his IQ had been assessed at 59. He was certainly a vulnerable person, but did he lack capacity to decide whether he should have contact with his father?

That issue, in fact, had already been decided by Mrs Justice Theis in a judgment she handed down in 2013. She determined that the son had capacity to be able to make decisions about where he lives and who he has contact with. There was no evidence of any change in that position, and therefore there was no evidential basis why the court should investigate the issue of the son’s capacity again.

After the father made his application, the son was asked whether he wished to see his father, and he made it quite clear that he did not. He indicated that he would like to receive a card from his father, but he repeatedly indicated that he did not want any direct contact.

As to the allegation that the son was being pressurised by his litigation friend, Mrs Justice Theis found that there was no evidence that the litigation friend had pressurised him, or that she had colluded with his aunt. The son had come to his decision quite freely.

And that effectively was the end of the matter. The son had capacity and had expressed his views. The father’s application therefore had no prospect of success, and was dismissed.

So there we are. A straightforward decision, but still a case that demonstrates the seemingly endless capacity for the family, so often a source of stability, love and support, to get itself into apparently endless difficulties, from which the court is required to extricate it.

The full report of Re K can be found here.

Photo by Philippe Put via Flickr under a Creative Commons licence.

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