“This afternoon, a wholly deserving and tearful father has asked the court for permission to withdraw his application to enable him to spend time with his son. It is poignant that that application comes before me just six days before Christmas.”
So begins the short judgment of His Honour Judge Bellamy in the case Re J (A Child – Intractable Contact). The case is a story of frustration and failure: the frustration of a father who should have had contact with his son despite the best efforts of the mother to thwart him, and failure of the family justice system to ensure, both for his sake and the sake of the child, that he did have such contact.
As I said, the judgment is short, so we don’t have very many details of the case. However, we do know:
- That the parents began a relationship in 2010.
- That the child, ‘J’, was born in December of that year.
- That the parents separated in January 2011, J remaining with his mother.
- That “J has been at the centre of an intractable, high conflict dispute between his parents since he was 3 months old.”
- That the mother alleged that the father had physically and sexually abused J. These allegations were considered by Judge Bellamy at a fact-finding hearing in 2015. At the end of the hearing, he concluded that the mother had not satisfied him that any of her allegations were true. On the contrary, he found that the mother had emotionally abused J. He made this finding having regard in particular to the frequency of the mother’s interrogations of J, to her video and audio recording of J and to her past unilateral decisions to withhold contact on a whim.
- A hearing took place in September 2016, at which the parents did agree that J should see his father. A contact order was made, including an agreed provision for the father to have alternate weekend staying contact with J from Friday until Sunday.
- The contact got off to a bad start (we are given no details), as a result of which the mother applied to vary the order. The father made a cross-application to enforce it.
- At a hearing in November 2016 the father made an application to the court to withdraw the proceedings. Judge Bellamy did not think that this would be in J’s best interests, and therefore refused the application.
- The father renewed his application for leave to withdraw the proceedings, and this application went before Judge Bellamy last December. The father was not represented.
It is important to understand the father’s reasons for his application. These were explained by Judge Bellamy:
“The father’s position today, as I have already indicated, is that he still wishes to withdraw his application. He takes that position not because he does not love his son – indeed, I am in absolutely no doubt that he loves J a great deal – or that he has lost interest in this litigation. These proceedings are emotionally distressing for the father. He is immensely frustrated that, as he would see it, this mother has deliberately flouted orders made by this court and the court has appeared powerless to do anything about it. As he rightly points out, two years ago the court made a clear finding that J’s mother has emotionally abused J, yet the court has not been able to deliver an outcome that helps J to recover from that abuse or prevent that abuse from continuing into the future.”
“From the father’s perspective, continuation of these proceedings may well do more harm than good so far as J is concerned. After seven continuous years of litigation – litigation which has singularly failed to enable him to have a meaningful relationship with his son – it is time to give up the fight and, although he does not put it in these emotive terms, to admit defeat.”
Judge Bellamy concluded:
“I am acutely conscious of the fact that, in allowing this father’s application to withdraw these proceedings, I am taking a step which may not be in the best long-term interests of this little boy. However, with both misgivings and regret, I accept that it is appropriate to accede to the father’s request to withdraw his application.”
The case will no doubt be seen by some as a damning indictment of the family justice system, which clearly failed this father (who, as Judge Bellamy pointed out, had done more than many fathers would do to try to establish a positive relationship with his son) and, more importantly, failed this child. The question, of course, is: what else could have been done? Unfortunately, the judgment does not give enough details to answer that question in any detail, although the obvious candidate for criticism is the habitual issue of delay in dealing with the case. There may also have been an issue of failure to enforce an order, although the father did of course indicate that he wanted to withdraw shortly after the September 2016 order was made.
Whatever, the case is a tragedy for father and son alike.
The full report of the case can be found here.