The court won’t always intervene in a contact dispute

Children|International|September 5th 2019

All family lawyers will have dealt with intractable contact disputes, in which the case returns to the court on a regular basis. I remember quite often when I was practising having cases in which carefully constructed contact orders quickly ran into difficulties, and my client would want me to return the matter to the court. Invariably my answer would be that the court will not want to intervene again before the order has been given time to work, unless some particularly serious problem had arisen.

An instructive example of this sort of scenario occurred in the case W-L (A Child), which was decided by the Court of Appeal in August 2017, but the report of which only appeared on the Bailii website last May.

The relevant facts of the case were as follows. The father is a national of St Lucia, and the mother is a national of the United Kingdom and St Lucia. They met in St Lucia and commenced a relationship. They started living together in St Lucia in March 2014. Their daughter was born in England in early 2016. The mother returned to St Lucia when the child was one month old, but shortly thereafter the parents’ relationship broke down, and they separated in June 2016. The mother and child came to England for a holiday in August 2016 and in October 2016 her solicitors informed the father that they would not be returning to St Lucia.

The father commenced wardship proceedings in England, seeking the summary return of the child to St Lucia. However, it transpired that, not being married to the mother, under St Lucian law he had no parental rights, and no right to make any application in respect of the child. Accordingly, the mother was the sole custodian with exclusive parental authority, including the unilateral right to relocate with the child to England, without any court intervention. This effectively put an end to the father’s return application.

There still, however, remained the issue of the father’s contact with the child. This was dealt with by an order made, substantially by consent, by Mr Justice Jackson on the 20th of January 2017. The order provided that the child would live with her mother, in England. Extensive contact arrangements were also included in the order, under which the father was to have contact in England in March 2017, in St Lucia in May 2017, in England in September 2017 and in St Lucia again in December 2017. The order contained a recital to the effect that the maternal grandfather, who was present in court at the hearing, had said that in order to facilitate contact he would pay the cost of travel incurred by the parents on three occasions each year.

Contact took place in England in March 2017, but did not take place in St Lucia in May. On the 26th of May the mother issued an application to vary the contact order, specifically to provide that contact should take place only in England. To keep this post relatively short, I won’t go into all of the details of why the mother made her application, but ultimately the main issue was that the maternal grandfather no longer felt able to fund contact.
The mother’s application went before Mr Justice Moor. He found that there was no reason to justify varying the contact order, and summarily dismissed the application. The grandfather’s change of position was not sufficient to warrant varying the order, and in any event, he must comply with the agreement that he had made in January.

The mother appealed, to the Court of Appeal. Giving the leading judgment Lord Justice Moylan summarised the issue to be determined:

“Was [Mr Justice Moor’s decision] an appropriate example of robust decision making in accordance with the overriding objective and the child’s welfare, or was it a decision based on information and evidence which was inadequate to enable the court to reach a properly founded welfare decision? Did it give inadequate consideration to the mother’s case, such that she did not have a fair hearing of her application?”

Having considered all of the points raised on behalf of the mother and the father, he came to the clear conclusion that it was a decision which Mr Justice Moor was entitled to make. He was entitled to determine that the matters advanced by the mother were not sufficient to justify her application to vary the January order. This was a robust decision, but judges have a broad discretion when making decisions of this nature. The carefully agreed January order had only been followed by one period of contact – this was insufficient to give contact a chance of developing as set out in the order. Accordingly, the appeal was dismissed.

Before I finish this post, I want to mention the penultimate paragraph of Moylan LJ’s judgment, which I believe is instructive. He referred to a comment that Mr Justice Jackson had made in his judgment, that nobody should be naive enough to think that there would not be moments of difficulty. Mr Justice Jackson urged, as did Lord Justice Moylan, the parents and their families to focus on seeking to make a success of contact. The child would benefit from this, and would be grateful to them for having done so.

The full report of the Court of Appeal judgment can be found 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:

    substantially by consent … lawyers! Either it is with consent or it is not with consent.

    Lawyers pretend there is consent where there isn’t any. It should be pointed out as its a very difficult subject and Not sure what the answer is.

    One advice I have, well 2 really. 1. Don’t criticise or slag the ex infront of the kids (at all). 2. Do praise them if you can in front of the kids. 3. Do tell kids that Mum and Dad do both still love them very much.

    The rest is like the sunscreen song. I.e. I am not sure I can argue for. that said, I don’t pretend the rest is best as lawyers tend to.

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