Dealing with an intractable children dispute, Part 1

Children|May 15th 2019

In early April the Court of Appeal handed down its decision in two private law children appeals, within five days of one another. Between them, I think the two cases have useful things to say about intractable disputes between parents over arrangements for their children, in cases where ‘parental alienation’ is not an issue. I shall deal with the first case in this post, and the second case in my next post.

The first case which, as we will see in a moment, I have previously written about here, is G (Children : Intractable Dispute), which concerned an appeal by a father against the refusal of an application for orders that his two children should live with him or have contact with him, and an order preventing him from bringing any further applications relating to the children for three years, without the permission of the court.

The facts of the case were that the parents lived together for some years, separating in May 2013. They had two children, both girls, now aged 11 and 8. The girls live with their mother. Since the separation there has been uninterrupted litigation between the parents about the children, and other matters (how often do we hear this?).

I couldn’t possibly detail all of that litigation (as far as it relates to the children) here, but these are the main points:

  1. In August 2014 a fact-finding hearing took place at which the judge made adverse findings against the father, relying in part upon two reports from a social worker, which supported the mother’s allegations of domestic abuse against the father. As I explained here, in 2015 the father succeeded in appealing against the findings, after the social worker was found to be biased.
  2. A ‘final’ hearing took place in early 2017. The mother wanted the court to make a final order, but the father sought a further psychological assessment of the older child, who indicated she did not wish to see her father. The judge preferred the father’s case, and ordered the assessment, which was extended to the whole family.
  3. A ‘final’ final hearing took place in April 2018, with judgment being handed down in July. The judge made a number of damning findings against the father, including that he was openly hostile towards the mother, that he was hostile towards the professionals involved in the case, that he was “the main if not principal source of conflict”, that he was unable to prioritise the children’s welfare above his own wishes, and that he had “completely lost sight of the welfare of the children”. In consequence of these findings, the judge refused the father’s application for orders that the children should live with him or have contact with him, and prevented him from bringing further applications without permission for three years.
  4. The father had had no proper direct contact with the older child since April 2014, and no contact with the younger child since September 2016.

The father appealed to the Court of Appeal, claiming, amongst other things, that the proceedings were procedurally unfair and infringed the children and father’s right to respect for private and family life under Article 8 of the European Convention for the Protection of Human Rights, by virtue either of the absence of contact or the length of the proceedings. It was also claimed that the judge had not pursued all reasonable routes available to him.

Giving the leading judgment of the Court of Appeal Lord Justice Peter Jackson found that there had been no breach of the human rights of the children or the father. Although the length of the proceedings was a matter of concern, that did not of itself amount to a rights infringement. “What is more relevant”, he said, “is that since 2015 the Judge has diligently and sympathetically attempted to revive the father’s relationship with his children but has been forestalled by the mother’s earlier lack of support for contact and by the father’s increasingly extreme attitude.” He went on:

“The father’s self-description as “free of findings, risks or concerns throughout” confirms that he currently has little if any insight into his own difficulties. As time has gone on, his self-defeating stance has become the main obstacle to progress. To be clear, Art. 8 rights are not reserved for irreproachable parents, but a parent who is only willing to participate in the delicate work of family reconstruction on his own uncompromising terms cannot hold others responsible when the work does not succeed.”

As to the routes available to the judge, Lord Justice Jackson said that there were only really two options:

“…the orders made by the Judge or the order sought by the father for the children to live with him, notwithstanding what the Judge described as the lack of any coherent planning for matters such as accommodation. Of these options, only one was realistic in the absence of a finding of severe parental alienation and the Judge’s choice was all but inevitable.”

Accordingly, the appeal was dismissed.

Whilst the father in this case clearly had reason to be aggrieved by how the ‘system’ had treated him, the case demonstrates the futility of continued hostility towards that system, and the other party. If you want the best outcome, then you must put aside any hatred of the other parent, cooperate fully with the ‘system’ and, above all, ensure that you put the welfare of the children above your own wishes.

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.

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