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“Dear Judge, I am writing to you because I think it's pathetic”: Re A-H (Children)

Document Cited authorities 23 Cited in Related
Vincent
AuthorLesley-Anne Barnes
Pages528-533
Published date01 June 2009
DOI10.3366/E1364980909000717
Date01 June 2009
THE (CONTEMPORARY) INTRACTABLE CONTACT DISPUTE

It seems, certainly south of the border, that much is expected of the judiciary in its “proactive case-management role”.1

In Re M (A Minor) (Contempt of Court: Committal of Court's Own Motion) [1999] Fam 263 at para 31 per Ward LJ.

The candid observation of Lord Woolf MR that “[t]he court itself has a very substantial interest in seeing that its orders are upheld” has been approved in a variety of judgments concerning uncooperative litigant behaviour.2

Nicholls v Nicholls [1997] 1 WLR 314 at 326, cited in e.g. Re M (A Minor) at para 31; Amberley Construction Limited v Beamish [2003] EWCA Civ 1267 at para 27; Medina Housing Association Ltd v Connolly [2002] EWCA Civ 1263 at para 29.

 Statutory amendments to the Children Act 1989 now empower English courts to grant compliance orders directing, monitoring and enforcing “contact activities” between parent and child.3

Children and Adoption Act 2006, inserting ss 11A-P in the Children Act 1989. Although the 1989 Act uses the all-encompassing term “individual who is a party to the proceedings” in the vast majority of cases such an individual is a parent. See Re B (Contact: Appointment of Guardian) [2009] EWCA Civ 435 as to the likely interpretation of ss 11A-P.

 However, the exercise of coercive power in family cases remains controversial. Recalcitrant adult conduct has to date produced a degree of judicial acquiescence throughout the UK, for it is generally believed that punishing a family member counteracts the court's primary obligation to have regard to the child's welfare.4

In Re M (A Minor) (n 1); Fourman v Fourman 1998 Fam LR 98; Re G (Children) [2006] UKHL 43, [2006] 1 WLR 2305. Cf Z v Z (Refusal of Contact: Committal) [1996] 1 FCR 538.

While the facts of Re A-H (Children)5

[2008] EWCA Civ 630, [2008] 2 FLR 1188.

might be depressingly familiar, the judgment, delivered before the new statutory regime came into force, raises interesting (and enduring) questions. The applicant, Mr A, sought permission to appeal against an order made by Coleridge J on 15 October 2007 in protracted and acrimonious family proceedings.6

In making the order Coleridge J also granted an order under s 91(14) of the Children Act 1989 preventing any party from seeking further substantive orders without leave of the court before 29 June 2009: see para 4.

 Mr A had been seeking regular contact with his daughters, C and R, since he separated from their mother, Miss H, almost 6 years previously. The children had initially enjoyed a “perfectly happy”7

Para 2.

 relationship with their father and were aged 13 and 5, respectively, at the time Coleridge J made the order. Since the parties’ separation the girls had lived with their mother and C, who was old enough to express a view, generally refused to obtempter contact orders made in respect of her. R, apparently believing that he was dead, had not seen her father “for a very long time”.8

Para 2.

The order of 15 October 2007, which concerned only C, discharged an earlier contact award and instead allowed the parties and C to arrange fortnightly contact among themselves. This was done first, because C expressed a desire to see her father and to make her own arrangements for doing so and secondly, because Miss H gave an assurance to the court that she would support and facilitate contact arrangements.9

Paras 12-15.

Arrangements were not made and, consequently, Mr A “saw very little”10

Para 23.

 of his daughter for a period of almost nine months. He requested that the Court of Appeal reassign the case to another judge and sanction the involvement of the National Youth Advisory Service (NYSA),11

See http://www.nyas.net/.

 a child advocacy and support charity. In determining the appeal, Wall LJ took the rather unusual step of reproducing in his judgment C's letter (tendered on her behalf by her mother) in which she addressed the lower court in the following terms:12

Para 18.

Dear Judge, I...

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