Judge not entitled to dismiss father’s contact application

Family Law|October 17th 2017

It is an accepted principle that a court will not normally re-open a dispute over arrangements for children shortly after making a decision on the matter, unless there has been a change in circumstances such as to warrant looking at the matter afresh. Thus, for example, if a parent applied to vary a child arrangements order just a couple of months after the order was made, the court would be justified in dismissing the application without giving it full consideration, if it found that there had been no significant change in circumstances.

But what if the court had not given the matter full consideration at the previous hearing? Could the court then summarily dismiss a subsequent application, simply because it finds that there has been no change in circumstances?

This was the issue in the recent case DP v PC, an appeal by a father against the dismissal of his application for contact with his two sons. The appeal was heard by Mr Justice Baker in the High Court.

DP v PC was yet another of the never-ending line of cases involving continuous litigation between parents over arrangements for their children. As Mr Justice Baker said: “these boys’ lives have been blighted by court proceedings over a number of years”. Over more than six years, it would seem. As Mr Justice Baker lamented: “It is one of the many sad cases which come before this court in which parents are unable to agree, for one reason or another, about the arrangements for their children.” Quite.

Anyway, to the facts of the case. Briefly, the mother was granted a residence order in respect of the boys in 2011. Since then the issue of the father’s contact with them has been the main subject of subsequent proceedings. The primary issue was not so much whether the father should have contact, but rather what form the contact should take: should it be direct or indirect contact, and if direct contact, should it be supervised?

In the course of the proceedings various reports were prepared, including by a psychologist, by a Cafcass officer, and by a guardian appointed for the children. The reports were generally supportive of the children continuing to have contact with their father.

A hearing took place in June 2016. The purpose of the hearing was essentially to decide whether the father’s contact should be supervised and remain supervised indefinitely, or whether it should be supervised and then move on to unsupervised and staying contact. However, the father decided not to proceed, and was given leave to withdraw his contact application. His reasons for doing so were disputed by the parties. He claimed that he took a step back because of what he described as the “turmoil in the children’s lives”, whereas the mother claimed that the father’s actions were simply typical of the inconsistent way in which the father had pursued the issue of contact. Whatever, the court made an order for indirect contact only.

In about September 2016 the father applied to have his contact application restored. His application was heard in May this year. The judge dismissed the application, primarily because he found that there had been no change in circumstances since the order of June 2016. The father appealed.

Mr Justice Baker found that the judge had been wrong to approach the case simply on the basis of whether or not there had been a change in circumstances. He said:

“That might have been an appropriate step to take where there has been a contested hearing relatively recently at which the issues have been properly and fully ventilated. In such circumstances, if a parent then returns to court and seeks to reopen the issue, then it is likely that a court will take the view that there should be no further extensive investigation, unless there has been a significant or material change in circumstances. In this case, however, the situation is quite different.”

Here, the issue of whether or not there should be supervised contact had not been argued at the hearing in June 2016. The judge should have given consideration to the various reports that had recommended contact, and if he had done so he would have realised that the welfare of the children required direct contact with their father.

Accordingly, the father’s appeal was allowed, and the case was remitted back for rehearing.

The full report of the case can be found here.

Photo by Nanagyei via Flickr

The blog team at Stowe is a group of writers who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. Guest contributors also regularly contribute to share their knowledge.

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