Has the system failed this father?

Children|December 12th 2018

You are a father who sees your four year old son regularly, having agreed a shared care arrangement with the mother, whereby your son splits his time virtually equally between his parents. The agreement has been in place for several months and then the mother suddenly and unilaterally stops you from seeing your son, alleging that you have been violent towards her, and stating that the arrangements should be changed so that the child lives primarily with her. The mother says that your son should remain with her, with you having no contact, until the matter is sorted out by the court.

I think that any father in such a situation is going to feel highly aggrieved, and will expect the court to sort the matter out without delay. Meanwhile, your contact with your son should be re-established pending the court decision – after all, you are innocent until proved guilty, aren’t you?

The father’s experience in the recent case David (A Child : appeal) was rather different. The court listed a fact-finding hearing to consider the mother’s allegations against the father for six months’ time, and meanwhile refused to make any arrangements for the father to have interim contact with his son until the contact issue could be considered in ten weeks’ time. The upshot of all of this was that this father, who had been having his son with him half of the time, would have no direct contact for at least ten weeks, and faced the prospect of there being no possibility of a return to the previously agreed arrangement for at least six months. In fact, after that time it must be unlikely that there would be a return to a shared care arrangement at all. And all because of the actions of the mother.

One might think that the system has failed this father.

The judgment in the case related to the father’s appeal against the court’s refusal to reconsider whether a fact-finding hearing was necessary, and to make an interim contact order immediately.

The appeal was dismissed by Her Honour Judge Atkinson.

I will not go into the technical details of why the appeal was dismissed. Essentially it boils down to the point that is often missed by parties aggrieved by the action (or inaction) of the court: at the outset of a matter, the court doesn’t know the truth. Where the welfare of a child is at stake, the court must naturally err on the side of caution.

The mother’s allegations were serious and many. There might be no truth in them whatsoever, but the court doesn’t know that until it has fully investigated the matter. The proper way to do that is surely via a fact-finding hearing.

And as to the issue of interim contact, how could the court order that the arrangements should return to the way they were, as the father wanted, without giving the matter proper consideration? The court can’t blindly accept that the child’s welfare will not be adversely affected by returning to the status quo, particularly when the mother has made such serious allegations.

The result of all of this is that the court must take the ‘safe’ option, no matter how unfair that may seem upon the father, and no matter that that may be seen as ‘playing into the hands’ of the mother who may, of course, have fabricated all of the allegations to suit her own ends. The only ‘safe’ option here is to go along with the mother’s wishes until the court has properly looked into the matter.

Of course, the other element in the case that adversely affects the father is the delay caused by the court’s inability to list the further hearings sooner. If those hearings could have been listed within, say, a month or so then the prejudice to the father would have been limited.

As Judge Atkinson said:

“…a great deal of emphasis is placed upon the length of time that this father will have to await the determination of these issues.  I wholeheartedly endorse his dismay. As Designated Family Judge for East London I am concerned and sometimes horrified at the length of time that litigants wait for a hearing because of the enormous burdens placed upon the system.”

This is where the system has really failed this father.

You can read the full judgment in the case 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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Comment(1)

  1. JamesB says:

    This makes no sense. What does it matter if he hits her or not. If she is not alledging violence neglect or bad approach to the child, then what is this – nonsense? The law is supposed to be in the interests of the child, period.

    You are right this case highlights the inherent bias of the system. The word here is ‘err’, err on the side of caution. Er. Exactly.

    Of course in six months the father may win but lose as status quo for contact will be reduced and will see son less.

    Does the system suck here? Is 50:50 shared care best? I think its probably second best. Best is people, parents, doing a deal between them, contact and money.

    Would the father want 50:50 contact if it didn’t mean zero maintenance obligation? I think probably not, which makes me reluctant to criticize the Judge and system here. The fault here is the CSA/cmec/cmoptions/cms and the feminist men hating brigade pushing divorce where everyone loses and the best result is the least worse where people can sort a deal. Unfortunately it seems very difficult and the law doesn’t seem up to the task since about 1973. Hence the decline in first marriages.

    Chatting with a bloke on Thursday evening… me “How long have you been married” him “We have been together 21 years, we are not married”. “Don’t want the law involved in our relationship”. Second time in less than a year I have had someone say that to me.

    The time has come for inexpensive, legally binding pre and post nups.

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