Lessons from a child arrangements case

Children|Family Law|December 11th 2018

Sometimes one comes across a judgment that is chock-full of noteworthy points. Mr Justice Holman’s judgment in NO v JL is one such judgment. The judgment contains many valuable lessons for any parent involved in a dispute over arrangements for their children.

The judgment concerned a dispute between parents over arrangements for their nine year old son. Specifically, Mr Justice Holman had to adjudicate upon three matters: firstly how the boy’s time was apportioned or divided between his parents, secondly whether each parent should be permitted to take him for holidays abroad, and if so, subject to what safeguards, and thirdly whether he should make an order under section 91(14) of the Children Act, preventing the father from making any further application in relation to the child without the permission of the court, “so as to remove or reduce the pressure of these very intense proceedings upon both the child and the mother for a period.”

The first point I want to mention is the father’s attitude towards the mother. We (i.e. family lawyers) have sadly all seen this sort of thing many times before. Mr Justice Holman found that the father “has a forceful and dominating personality”, whereas the mother struck him as “a sad person who has emerged from a relationship in which she was dominated and controlled by her husband”. In the course of her evidence the mother said that after the separation her own adult daughter from a previous relationship had commented, ‘Finally, Mum, you have come out of prison’. Mr Justice Holman was quite clear that during the parents’ marriage the father “exerted very tight financial and emotional control over her, and that he continues to try to do so.”

As suggested by that last remark, the father’s attitude towards the mother had a huge bearing upon the case, and its outcome. Mr Justice Holman commented that:

“As the case wore on, it became more and more apparent that he is obsessive and strongly self-righteous. He has absolutely no regard or esteem for the mother, either as a mother or as a person.  He is highly critical of her and every aspect of her life.  His questioning of her was relentless, pushy, and seething with latent aggression.  As a result, the hearing became very destructive. A concession which the mother made early on the first day … was withdrawn by the end of the second day … when she very obviously felt shocked and worn down by the father’s aggression and very negative attitude towards her within the courtroom.”

That concession was that the mother originally agreed to the father having an extra night’s staying contact, but she changed her mind as a result of the father’s attitude towards her. That attitude ultimately cost the father, as Mr Justice Holman agreed that he should not have that extra contact.

Inevitably leading on from the father’s attitude was the effect that it had on the child, with the father speaking negatively about the mother to him. As the child’s guardian found, this was having a damaging and potential long-term effect upon the child, which could embed in him “a way of relating to women that is controlling, derogatory, and disempowering.”

The second point I want to mention is another thing that crops up all too frequently. The existing contact arrangement (excluding holidays) involved the boy spending five nights with his father every fortnight. The father sought “the mathematical equal division of time”. Now, I’m not going to comment upon the father’s motivations in this particular case, but all too often we as family lawyers see one parent blindly demanding ‘equality’ with the other parent, as if it is their ‘right’, and irrespective of what is actually in the best interests of the child. Such demands often lead to highly contested and damaging proceedings, where in the end the differences between each parent can be completely academic.

The next point relates to two of those nights that the boy was staying with the father. The arrangement was that the boy would stay with his father every other weekend from Friday to Monday, and then every Tuesday night. This was creating what Mr Justice Holman called a ‘yo-yo effect’, unsettling the child. Again, a parent must focus upon what is best for the child, not upon simply how much time the child spends with them. Mr Justice Holman was in no doubt that the arrangement whereby the child spend every Tuesday night with his father should cease.

Moving on, the next point is yet another issue that regularly causes conflict between parents. The existing order stated that the boy should live with both parents, despite the fact that he actually spent most of his time with his mother. The father sought to have this changed so that the order stated that the boy should live with him. What difference would this make? You might ask. Well, Mr Justice Holman explained that the existing order had “empowered the father to create such problems as changing the registration of [the child] with a GP, and obtaining part of the child benefit behind the back of the mother.” In any event, he said, it was a fiction: “If [the child] spends three out of 14 nights with his father and 11 with his mother in every fortnight, he is, on any sensible use of language, living with her and spending time with him.” Mr Justice Holman ordered that the boy should now live with his mother, particularly in the light of the father’s attitude towards the mother, and the effect that was having upon the father’s parenting.

I will skip over the next part of the judgment, which deals with holiday contact and the issue of taking the child abroad. The only thing that I would say is that the father, who is of Turkish origin, wished to be able to take the boy to Turkey. However, despite having lived in England for twenty years and having obtained British citizenship, the father applied for, and obtained, a custody order in Turkey. Unsurprisingly, Mr Justice Holman said that this was a “totally unnecessary”, and “chilling” step for the father to take, thereby working against the father, not for him.

Lastly, I turn to the section 91(14) application, made by the mother, and supported by the guardian. Mr Justice Holman set out his finding thus:

“In my view, the history and intensity of these proceedings to date, and the damaging impact of them upon [the child] … are such that he, as well as the mother, does now require respite.  This case is an exceptional one which does fall well outside the norm of contested private law proceedings.”

He therefore made a section 91(14) order, to last until the child reaches the age of 12.

Mr Justice Holman then concluded his judgment with this familiar appeal to the parents:

“It is my fervent hope that as this painful hearing recedes, both parents will begin to feel able to put past conflicts behind them and focus on being good parents to their son, to whom each has so much to offer.  He is an able and high achieving boy with great prospects for his own future.  But he is on the cusp of potentially irreparable and lasting harm unless both parents join in holding the other parent in good esteem, respecting him or her, and enabling their son to move fluently and happily, and without stress or pressure, between them.”

That, perhaps, is the most important lesson of all from this case.

If you wish to read the whole judgment you can do so, here.

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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