As any experienced family lawyer will be able to attest, it is a common occurrence that a parent involved in a dispute regarding arrangements for their child will, consciously or not, put what they consider to be their ‘rights’ ahead of the welfare of the child. However, whether they consider that their rights are more important, or whether they simply believe that their rights coincide with what is best for the child, this attitude can be both wrong and very unhelpful, possibly causing serious damage to their case.
An example of this phenomenon is the case C (A young person). The judgment in the case was handed down last July, but was only published (to my knowledge) last week.
The facts in the case were extremely sad, though thankfully unusual. The case concerned a 16 year old girl who had lived exclusively with her mother until her mother unexpectedly died from cancer in January 2016. She had not had any contact at all with her father until she was ten or eleven years of age. After her mother’s death she went to live with her maternal aunt and her family, and the aunt applied for a child arrangements order to be made in her favour. The father became involved in the proceedings and in October 2017 a shared care order was made in favour of the father and the aunt. Both the father and the aunt were given parental responsibility.
In March 2018 the father applied for a child arrangements order to be made in his favour on the basis that the child was by then living with him, his objective being that he would be the only person who had parental responsibility for the child. Both the child and the aunt opposed the application, which fell to be determined by Mr Justice Keehan in the High Court.
In the course of the evidence it became clear that the child was very attached to her aunt, and that she wanted to continue to have a close relationship with her. On the other hand, the child felt very insecure in her relationship with her father, and feared that he would not support her relationship with the aunt or her maternal family after the case was concluded. It was also clear that the father had much work to do to establish a close relationship with the child.
Mr Justice Keehan found that the aunt was “an emotional and psychological parent” to the child. The father, however, did not accept this. It was also found that the father was not meeting the child’s emotional and psychological needs, in particular he would not promote, or see in a positive light, the child’s need for a close relationship with the aunt and with her maternal family. In short, he found that:
“The father is, in my view, obsessed with his rights as a parent and does not focus on his duties and responsibilities to nurture or to be sensitive to the needs of his grieving daughter.”
The father claimed that the child had made it impossible for him to exercise his parental responsibility by her support of the aunt, and found it “perplexing and bizarre” that the child wanted the aunt to have parental responsibility. These things, said Mr Justice Keehan, graphically illustrated his “assessment of the father as a man obsessed with his rights as a parent and not with the extremely important emotional and psychological needs of his daughter.”
In the circumstances Mr Justice Keehan made a child arrangements order that the child live with her father, which reflected what was happening on the ground, and made a child arrangements order that she spend time with her aunt, on no less than three occasions a week. He also granted parental responsibility to the aunt (I’m not quite sure why he did this, as my understanding is that the aunt already had parental responsibility). He concluded:
“I am satisfied that these combinations of orders will meet the welfare best interests of [the child]. They will enable her to live with her father and, as she wants, to build her relationship with him, but it will provide her with the very important emotional and psychological comfort that she requires from her relationship with the aunt and, through her, with the wider maternal family who are all so very, very important to [the child] and to her future welfare.”
The case is another demonstration that the ‘rights’ (if we can use that word at all) of the parent are not what is important in a dispute over arrangements for a child. What is important, indeed paramount, is the welfare of the child. The court will therefore always be guided by what is best for the welfare of the child, not by the rights of the parent (or, indeed, of any other person). Any parent involved in such a dispute must therefore put aside any thoughts of their ‘rights’, and focus on the welfare of the child.
You can read the full judgment here.