The case PA v CK & Others contains so many classic issues and facts typical of a protracted contact dispute: almost unrelenting litigation, ‘custodial’ parent in a new relationship, child ‘alienated’ against ‘non-custodial’ parent, ‘non-custodial’ parent refusing to accept findings against him, numerous attempts by the court and various professionals to resolve matters, but without success. And so on. The case also contains one rather unhappy fact that is not so typical, which I will come to in a moment.
The judgment of Mr Justice Cohen in the case relates to an application by the father for permission to appeal against an order that he have no direct contact with his nine-year-old daughter, ‘H’. The order also dealt with applications by the father for a suspended change of residence order and an order making it clear that H’s surname was his surname, not the mother’s married surname. Those applications were refused, but the father was not granted permission to appeal against those refusals.
The background to the case is that H’s parents lived together from 2003 until 2011, finally separating in 2012. By early 2013 the mother was in a relationship with another man, who she has since married. She has had a child by her new husband and is expecting another.
H has remained with her mother since her parents separated. “It is a very sad fact”, said Mr Justice Cohen, “that since 2013, almost without cease, the parties have been involved in litigation so that there have been five years of the most conflicted litigation with H at the centre of it.” How often have we heard something like this? Of course, some would say that the blame lies with the family justice system for not resolving the matter sooner, and I’m sure in many cases there is some truth in that, but to suggest that no blame lies with the parents would be naïve indeed. As we will see, neither parent, in this case, escapes criticism.
In 2013 the Telford Magistrates’ Court made an order for supervised contact, and also made a series of findings against the father which Mr Justice Cohen summarised “as being of bizarre or controlling behaviour.” The father, he said, had been much criticised in the litigation for his failure to accept those findings, and it was plain that he still did not accept the bulk of them.
The supervised contact apparently went quite well, but in 2015 the mother and her new husband issued an application to adopt H. This is the unhappy fact that I referred to above. As Mr Justice Cohen explained, the mother and her husband clearly sought by the application
“to extinguish the father’s parental responsibility for H and remove him from any role in her life.”
He went on to call the application ‘misconceived’, but I would probably use stronger language. To attempt to deny a child her natural parent in this way is appalling. Thankfully, the mother and her husband subsequently withdrew the application, although the father said that by that time “much damage had been done”.
Moving on, the father’s contact with H broke down in February 2017, when H refused to get out of the car to see him. As a result, there has been no direct contact since January 2017.
The case eventually went before the court in January this year. As indicated, the judge refused the father’s application for a suspended residence order (which Mr Justice Cohen also criticised as being “unrealistic”), and made an order for indirect contact only, by Skype/telephone, letters and gifts.
The father sought to appeal.
“The problem in this case”, said Mr Justice Cohen
“is that there has been five years of litigation, huge ill will, multiple attempts at therapeutic interventions, the involvement of many professionals, and a complete lack of progress, and H has been caught in the middle of this conflict. It is not easy to see the way forward. H, inevitably, has sided with those with whom she is living.”
He went on:
“The prospect of yet more highly conflictual litigation between these parents, with H in the middle, would in all probability be deeply damaging to H and cause further difficulty in her resuming a relationship with her father.”
In any event, he found that there was no basis on which he could or should find that the judge was wrong. Accordingly, the father was refused permission to appeal.