Background on the relevant law

S.1 (2A) and (2B) of the Children Act 1989, as amended by the Children and Families Act 2014, states that there is a presumption that involvement (direct or indirect) of a parent in a child’s life will further the welfare of the child. This position is therefore the starting point when considering whether to make an order for contact.

In some situations, one parent is against the prospect of the child having contact with the other parent, this is otherwise known as the parent being ‘implacably hostile’. Munby LJ has set out guidance for such situations in Re L-W (Enforcement and Committal: Contact); CPL v CH-W and Others [2011] 1 FLR 1095 at [97]). He stated that in all such cases there must be judicial continuity, judicial case management (including effective timetabling), a judicial set strategy and consistency of judicial approach. Additionally, in situations where there are difficulties between the parents of a child, McFarlane LJ gave guidance in the case of Re W (Direct Contact) [2012] EWCA Civ 999 where he said:

“tough or not, part of the responsibility of the parent with care must be the duty and responsibility to deliver what the child needs, hard though that may be”.

Therefore, in order to give effect to these principles, a judge must, when making a child arrangements order (CAO) not just when the CAO has been breached, consider whether to support the order with enforcement under ss.11J-11N of the Children Act 1989 (Re A (Intractable Contact Dispute: Human Rights Violations) [2014] 1 FLR 1185). It would only be in situations where good reasons exist as to why the CAO should not be enforced that the judge should consider not doing so. When assessing these reasons the following should be considered:

• No rational grounds – contact should only be refused if risk of serious harm to the child if contact was allowed.
• Strong grounds – if strong grounds justify there being no contact, even if is hostility exists, this hostility can be ignored as the strong grounds alone are enough to deny contact.
• Rational but not decisive grounds – hostility may be an important factor, need to measure effect of the hostility on the child.

In cases where the child themselves is opposed to contact with a parent (intractable opposition), their welfare should be the determinative factor the court should consider when balancing the harm caused by denying contact versus the harm caused by contact, rather than the child’s wishes (Re H (A Child) [2014] EWCA Civ 271).

Facts and first instance decision

The case concerned a long running contact issue regarding a child of 12 years of age and his Father. The matter that was to be determined by the lower court and then by the Court of Appeal, was whether to re-start contact between the child and his Father after a number of years of no contact.

Initially, after the parents separated in August 2005, the Father saw the child twice a week during the day for an hour or so and the child was predominantly cared for by his Mother. Contact stopped on 22 January 2006 and around the same time, the Father made a contact order application under Section 8 Children Act 1989 and the Mother applied for an injunction under the domestic violence legislation.

CAFCASS carried out a report at the request of the court and the officer found that the child had an extremely strong attachment to his Father and recommended that both parents support the child’s attachment to each of them. Additionally, the officer recommended that the child stayed with his Father every other weekend. This contact continued until February 2007 when on one occasion, the Father returned the child late to his Mother who stopped contact.

The Mother made reports regarding statements that the Father had allegedly said to the child which the child had then relayed to her. As a result of this and other matters, there were concerns about the child’s mental health and so the Mother made reports to various organisations.

There was limited contact between the child and his Father during this time which was reported to be positive and the child indicated strongly that he wished to continue the contact. As a result, any decision about contact was put on hold until further assessments had been carried out. However, the Father withdrew his contact application due to the mental strain that it was putting on the Mother. Both the Father and the Guardian later admitted that this was not the correct decision.

The Father made a further application on 26 November 2010. Within this time, the Mother had formed a very negative view about the Father and felt that he was dangerous in respect of the child’s welfare, which led the child to also hold this view. Both parents were psychologically assessed and the Mother was found to suffer from PTSD whereas the Father was found to have no mental health issues.

The Father applied for residence in the hope that this threat would encourage the Mother to comply with the direct contact order. HHJ Atkins heard the matter in the lower court and made the decision that it would be inappropriate to order residence or to restart direct contact with the Father. This was on the basis that the Guardian and CAFCASS did not support it, because it would be detrimental to the Mother’s mental health, it would not succeed and it would be detrimental to the child’s welfare and to his views of his Father. However, the judge made an order for limited indirect contact.

Decision on Appeal

The Father appealed on the basis that; it was a case of implacable hostility to contact on behalf of the Mother, the Mother has a responsibility to encourage contact, the serious harm concerns were not included in the welfare evaluation and that hearing took place in the months leading up to the introduction into the Children Act 1989 of 1(2A) and (2B) as set out above.

The Mother and the guardian both said that the appeal should be dismissed.

McFarlane LJ restated the importance of the child’s welfare being paramount and that the starting point is that “it is and should be a given that it will normally be in the best interests of a child to grow up having a full, real and entirely ordinary relationship with each of his or her parents, notwithstanding that they have separated and that there may be difficulties between the two of them as adults.”

However, he dismissed the Father’s appeal for a number of reasons:

1. Whilst he accepted that the judge in the lower court didn’t include the harm concerns in the welfare evaluation, the judge was still correct in his overall approach.
2. The judge was correct to have not considered the option of preliminary work taking place before direct contact was implemented, as this wasn’t the Father’s application who had instead put forward a more robust argument which wasn’t likely to succeed (direct contact from nothing). The judge was therefore only left with stark options to choose between.
3. The child had consistently said no to contact, even if this was due to complicated reasons included being tangled up with emotionally entangled relationship with the Mother. Therefore, to move from this to contact was a big obstacle in the Father’s application
4. That such long period of time no contact would mean that it wouldn’t work.
5. The Mother is emotionally very vulnerable and this would get worse if contact with the Father was ordered and this would adversely affect the child.

Overall, McFarlane LJ decided that by the time the case had reached the lower court the options left for the judge meant that he had to come to the decision that he did. He stated that it was the sort of situation where the blunt instrument of a court making an order wasn’t going to solve the issues. Therefore, whilst it was the right decision he stated that the outcome was tragic for the Father and particularly tragic for the child.

Comment

The Judicial rhetoric does not depart from previously stated law and emphasises the important starting point that where possible contact should be maintained with both parents.

However, the case clearly illustrates the complications that can arise in such cases and that whilst the courts try to take a pragmatic approach, they are restrained by what is within their powers and by what is presented to them. Additionally, there is only so much that they can do to facilitate contact when matters have progressed and views have become as entrenched as far they did in this case.

In order to attempt to avoid such situations occurring in the future, parties need to bring matters before the Court as soon as possible and should consider extremely carefully any decisions to make or withdraw applications for contact. Furthermore, the system needs to operate in a manner which assists the parties to do so.

The delay in this case had a significant impact on the child and subsequently the outcome of the case. As McFarlane LJ stated “a period measured in 18 months or so to obtain intervention of this sort is just simply unacceptable. It is not unacceptable in an arid, technical way, but it is wholly unacceptable for this boy, who carried on growing up in circumstances where he was not seeing his father, and allowed a situation that the judge has now found was established to become even more consolidated than it had been when the Father first made his application” and this is truly tragic.