The limits of the court’s power to resolve children disputes

Children|December 5th 2018

Parents applying to the court for contact with their children naturally expect the court to take every possible step to ensure that contact takes place. Certainly, that is normally the case, as it has long been accepted that the welfare of children is best served by them maintaining a full relationship with both parents. That is almost always the goal of the court. However, there are cases in which the court simply is not able to achieve that goal.

RR v MM, decided by Mr Justice Moor in the High Court in October, was one such case. It concerned a father’s attempts to have contact with his son. Those attempts have involved almost continuous litigation since the boy was born eleven years ago.

I will not go into the details of that litigation, but it included numerous applications and appeals by the father, which have been ultimately unsuccessful in securing direct contact. The father clearly and understandably has made every effort to have contact with his son, although one of the few criticisms of him contained in Mr Justice Moor’s judgment was that: “It may well be that, in part, his eagerness to engage the court has been a problem for him.”

Certainly, the mother, and most importantly the child, were weary of the constant litigation, and the consequent disruption of their lives. As Mr Justice Moor explained, the crux of the case occurred when an appeal by the father was heard by the Court of Appeal in March 2017. Giving the leading judgment of that court Lady Justice Black (as she then was) explained that there were a number of influences upon the decision of the judge in the court below:

“These included the impact of the proceedings on [the child’s] life, directly and through his mother. The judge referred to the fact that he had been the object of proceedings since he was a matter of months old and said that she had lost count of the number of professionals this child had been interviewed by and could not begin to calculate the number of court hearings. Of considerable importance also were [the child’s] wishes and feelings, which were undoubtedly an obstacle to contact. The judge noted particularly their consistency over many years tracing their course in her judgment. There was also the view of the Cafcass officer that, whichever way it was approached, a move towards direct contact would cause [the child] emotional harm and the judge’s own view that the more limited option of telephone calls between [the child] and his father would not work, given his present state of mind.”

In short, the Court of Appeal came to the conclusion that further intervention in the case was futile. The court had explored “all realistic avenues”, and “could not do any more.”

It is important to note that the judge in the court below had found that this was not a case of implacable hostility on the part of the mother.

So to the present hearing, the subject of this judgment. This concerned the father’s latest appeal, against decisions made by the judge in the court below, including not to submit to an application by the father to recuse herself on the basis of bias, and (unsurprisingly) to prevent any further applications by the father without the permission of the court, for a period of three years. The father also claimed that respect for his right to privacy was invaded when the judge in the court below had read a letter that he had written to the court marked private and confidential, requesting that the case be allocated to a different judge.

Mr Justice Moor dismissed the appeal. As to the recusal point he said that the fact that a judge determines a case against a litigant, as this judge had done, does not make them biased. As to the prevention of further applications, it was “absolutely right” that the point had been reached where it was proper to make such an order. Lastly, as to the privacy point he had this to say:

“It is absolutely not appropriate for any litigant to write to a court on a private and confidential basis … There cannot be secrets with the court and I ask myself rhetorically, “How would this father react if the mother was sending letters to the court on a private and confidential basis, not to be disclosed to him or to the judge hearing his application?” The answer is absolutely obvious.”

And so we have the sad situation whereby there is no relationship between a father and his son. Not a satisfactory outcome at all, but a demonstration of the limits of the court’s power to successfully resolve children disputes. I’m sure that there will be some who criticise the court for what they consider to be its failures in this case, but the hard truth is that the court, with all its powers, simply can’t bring every children dispute to a satisfactory conclusion.

You can read the full judgment here.

Author: John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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