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Simply too late: father wins appeal, but no contact order affirmed

“The right decision is the wrong decision if it’s made too late.”

— Lee Iacocca

Last Thursday I wrote here of a case in which the family justice system failed to ensure that a father had contact with his child, with the result that the father gave up and withdrew his contact application. I am now going to relate another recent case in which the system failed a father.

The case is J (DV Facts), an appeal by a father against an order that he have no contact with his elder two children, and only indirect contact with his youngest child.

The background to the case was that the parties were married in 1995, and have three children, now aged 18, 16 and 11. The parties separated in September 2014, when the father left the family home.

In December 2014 the mother applied for a non-molestation order, alleging physical violence, drunken and controlling behaviour on the part of the father, including a serious and detailed allegation of marital rape. An ex parte order (i.e. without hearing the evidence of the father, who was not present) was made by the court for a period of two years, requiring the father not to communicate with the mother or the children, whether by letter, text message, social media or other means of communication.

Remarkably, no further hearing of the mother’s application took place, despite the father indicating to the court that he denied the allegations made by the mother and, instead, asserted that it was the mother who had been guilty of abusive and controlling behaviour within their relationship.

The father issued a cross application for a child arrangements order with respect to all three children, on the basis that they would reside with him. It soon became clear that all three children vehemently opposed any contact with their father. The father maintained that he was the parent who had had the closer relationship with the children, and that the children had been poisoned against him by their mother.

At this point it should have been obvious to all that the allegations of both parties should have been investigated at a fact-finding hearing as soon as possible, so that the court could determine where the truth lay, and deal with the case accordingly. Indeed, at a directions hearing in February 2015 the District Judge determined that a fact-finding hearing was “necessary”. However, the hearing never took place, essentially because His Honour Judge Allweis, the judge to whom the case was allocated, took the view that it was unnecessary, as the children’s views were sufficient to determine the case, the children’s guardian having advised that “any order made against [the children’s] wishes will be futile and it is impossible to force them into spending time or living with their father.”

The matter eventually went to a hearing in July 2016, at which the judge made no order for contact in respect of the middle child (the oldest child by then being too old for the court to make an order), and an order for indirect contact only with the youngest child.

The father appealed to the Court of Appeal, his primary ground of appeal being that no findings of fact had been made in the case. Giving the leading judgment Lord Justice McFarlane found that HHJ Allweis had fallen into error. He said:

“…I am of the clear view that in this case, given the issues as I have described them, there was an inescapable need for the underlying factual assertions made by each party to be resolved as far as that was possible. Notwithstanding the injunction proceedings which called for a full hearing in any event, it was plainly necessary for the polarised cases of each parent to be investigated before any informed determination could be made as to the children’s welfare. On the one hand, the mother’s case was one of sustained and significant domestic abuse which, she claimed, justified a wholesale refusal of contact. The father’s case was entirely to the contrary, asserting, as he did, that he had not been abusive and, instead, that his close relationship with the children had been perverted by the mother poisoning the children against him. This was, in short, an intractable contact dispute where the father was alleging that the mother had alienated the children against him.”

In the circumstances the father’s ground of appeal was made out. Accordingly, his appeal was allowed.

But sadly this was to be a Pyrrhic victory for the father. Lord Justice McFarlane found that it was simply too late for the case to be remitted back for a fact-finding hearing. By the time this had happened, the middle child would also be too old for an order to be made, and the youngest child’s views were by now effectively too entrenched for any attempt at contact to take place. Lord Justice McFarlane concluded that:

“In those circumstances, and despite having a great deal of sympathy for the position of this father, who has, as he says, simply not had his case on the facts ‘heard’ by the court, I am driven to the conclusion that it is now simply too late, and contrary to welfare interests of either of these two children, to contemplate a re-hearing.”

Further, given the strength of the children’s views, it could not be said that HHJ Allweis was wrong in coming to the same conclusion in July 2016. Accordingly, despite allowing the appeal, Lord Justice McFarlane held that the proper order was to affirm the July 2016 order, without any alteration.

Lady Justice King gave a consenting judgment.

Please note that I have significantly simplified the facts and the judgment in this case, for the sake of clarity. You can read the full judgment here.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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  1. Mr D says:

    A classic example of how the system takes too long and has failed the children. If the default on divorce was 50/50 shared residency and then you sat down with a mediator to work out from that basis who has what contact to accommodate your work/life requirements then the children wouldn’t be failed. Oh – can’t change the system – all those solicitors, barristers, Judges who would need to find another way to make a living.

  2. Mr T says:

    Yet another example of uninformed old fashioned Judiciary resorting to adultification of children.

    When will they realise they need to get educated or call on other professionals?

  3. Seriously says:

    Wow, This case echoes mine , mistakes made by lay magistrates on the first hearing , no fact find , no completed safe guarding report , my later appeal up held, but stated too late to do anything much now as will only further entrench the view of the younger child . Hugely unjust and huge tragedy for the welfare and long term of health children.

    • Peter Davies says:

      Hi Seriously, since we started NAAP (National Association of Alienated Parents) it has become clear that your situation is by no means unusual. We get new accounts every day of similar treatment meted out in the name of justice. The ‘no delay’ principle contained in statute has no more standing than the court’s orders in these cases and the end results become self fulfilling prophecies. There seem to be stock responses which are wheeled out to order. Children are found to be ‘too old,’ ‘too enmeshed,’ and purportedly so vehemently opposed to contact that any attempt at promoting it would be futile. Repeatedly, we see the failure of judges to use the many tools at their disposal to do their jobs. The higher courts are the sanitised areas and the shop windows for the system. They are the tips of large icebergs whose roots are hidden from view in the lower courts. We now know that and it is high time that we shone a light upon it.

  4. Paul says:

    Parent Alienation…

  5. Peter Davies says:

    In F v M; Re D (A child) (Intractable contact dispute) [2004] EWHC 727. Munby P took it upon himself to make life easy for even lazy judges who were hard of thinking.

    This case exhibited three particularly concerning features:

    (i) the delays of the court system, exacerbated by, inter alia, the absence of meaningful judicial continuity and the lack of any overall timetable,
    (ii) the court’s failure to deal with the mother’s allegations, and
    (iii) the court’s failure to deal with the mother’s defiance of court orders or to enforce its orders.

    From a judicial perspective there were two further concerning features:

    (iv) the court’s frequent response to problematic contact matters was, inter alia, to reduce contact and obtain expert reports which produced further delay and exacerbated matters, and
    (v) the court’s failure to recognise the case as intractable until it was too late for any effective intervention.

    From European jurisprudence a number of principles could be drawn:

    (vi) art 8 protected both the parent’s and the child’s right to contact with each other,
    (vii) it was essential that matters should be dealt with speedily, as relations between parent and child should not be determined by the passing of time;
    (viii) that a non-custodial parent had a right to have measures taken to facilitate contact with the child and the national authorities were obliged to take action,
    (ix) the right to a court guaranteed by art 6 also protected the implementation of final, binding decisions which could not remain inoperative to the detriment of one party. Those positive obligations extended in principle to the taking of coercive measures, against both the recalcitrant parent and even the child.

    This was the first time for the list to be stated but it has been quoted, cited and paraphrased many times since. 14 Years later we have the appeal court wailing an equivalent mantra to (ii) and several other items in this list. Unfortunately, traditional learning methods have failed to inculcate these messages into the minds of HHJ Allweis and others. After 5 years of family court reform under Munby P some things do not appear to change. I wonder whether the president appreciated just how much antipathy to change – or merely keeping up – existed in the family court when he took up his office. Cases like this remind us of what a monumental challenge he was taking on.

    Does anyone really think this is good enough? Where else do professionals get to trouser c. £140k a year as a reward for repeating the same errors ad nauseam and consigning children to emotionally abusive childhoods?

  6. Aimee Montovio says:

    How can it be too late when reunification programs exist? You cannot reward people for using delaying tactics by then saying things are now too entrenched and too late. Court order reunification and allow a professional to show it is NOT too late and support the professional with court orders necessary to allow reunification to work.

    • Angela Ruberto says:

      Totally agree, reunification work should be ordered immediately and paid for by the MOJ for their failure to prevent harm to the children and deal with the case aporopriately.

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