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Mother wins appeal in desperate no direct contact case

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VB v JD & Others is the latest in a never-ending sad litany of cases I have read over the years involving almost ceaseless litigation between parents over arrangements for their children. Of course, that is not to say that the parents are always the sole cause of that continued litigation – there may also be other factors, not least failures of the system to bring it to an earlier conclusion. But that does not make the cases any less sad.

VB v JD & Others concerned a mother’s appeal against an order stopping all direct contact with her 7½ year old daughter, ‘A’. The background to the case was that the parents separated in 2013, since when we are told that litigation between the parties has continued “almost without cease”. “The chronology of court hearings makes desperate reading.” Said Mr Justice Cohen, who heard the appeal. He went on: “The parents’ relationship with each other is non-existent.”

Initially the parents shared the care of A. The critical moment in the case, however, occurred in 2015 when the mother and A’s half-sister, ‘B’, alleged that the father had sexually abused B. B is the daughter of the mother and her former partner, and is now aged 17. The allegations were considered by the court in April 2015, when the district judge concluded:

“In the light of the clear view I have formed about B’s evidence, it must follow that I dismiss the allegations against the father. I am not able to say that nothing untoward happened. It is simply that the mother has wholly failed to discharge the burden of proving what she alleges.”

He also made this important observation:

“It seems to me to be a reasonable inference to draw that this mother appears determined, at any cost, to ensure that A has no contact or relationship with the father.”

At a further hearing in December 2015 the court directed that A should live with her father and stepmother. Since then, A has neither lived with her mother nor had staying contact, and all contact has been supervised.

For the sake of brevity I will now skip ahead to May 2017. In that month the father issued an application seeking a prohibited steps order against the mother and B, and for variation of the most recent child arrangements order. The application was prompted by the actions of the mother and, in particular, B, who had contacted Children’s Services, the police and A’s school, expressing concerns about A living with her father, who B alleged had sexually and physically abused her. These incidents continued until June 2017. Meanwhile, the mother continued to have contact with A without incident, until the father’s application was determined in February 2018.

The determination of the court was that the mother should have no direct contact with A. The essential reason for this was that the judge considered that it was the best way to protect A from the effects of the actions of her mother and B. The court also made an order prohibiting any further applications in relation to A for a period of three years. The mother appealed.

Mr Justice Cohen allowed the appeal. His reasons included:

  1. That the judge had not considered the possibility of there being very limited, as opposed to no, direct contact, for example two or three times a year.
  2. That whilst the events that led up to the father’s application were “disgraceful”, they were all outside contact and stopping contact would not, in itself, mean that those events do not recur.
  3. That to remove the mother from the child’s physical presence for three years, a child then aged 6, so half the child’s lifetime, is a very long time (and therefore not a step to be taken without very good reason).

In addition to the above, Mr Justice Cohen felt that in circumstances where contact itself was going well and enjoyed by the child, greater thought needed to be given to the instruction of a child psychiatrist, before coming to a decision. In short, he said: “To terminate a child’s relationship with the mother and sister is very draconian and it seems to me that this was a case where all available alternatives had not been fully explored.”

Accordingly, the appeal was allowed and the case was remitted back to the court below for further consideration, although Mr Justice Cohen did have this warning for the mother and B:

“I do not know what the outcome of this case will be, but I make it clear that I find it hard to envisage contact for the foreseeable future occurring, if it does at all, with anything like the frequency that it has in the past. The mother and B have to prove themselves. Further complaints to the Social Services or police, whether done personally or through the agency of others, are, if unjustified, likely to lead to a longer cessation of any contact at all.”

You can read the full judgment 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, with his content now supporting our divorce lawyers and child custody lawyers

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