Re O (A Child) (Termination of Contact)
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Wall,Mr Justice Wall |
| Judgment Date | 12 December 2003 |
| Neutral Citation | [2003] EWHC 3031 (Fam) |
| Court | Family Division |
| Docket Number | Case No: HB99P632 |
| Date | 12 December 2003 |
[2003] EWHC 3031 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Wall
Case No: HB99P632
The Father appeared in person with a McKenzie Friend
Miss Claire Jakens (instructed by Messrs Williams Macdougall & Campbell) for the 1 st Respondent
Miss Sarah O'Connor (instructed by CAFCASS Legal) for the 2 nd Respondent
Hearing dates : 24 November 2003
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment is being handed down by Mr Justice Wall who gives leave for it to be reported. The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
Introduction
In this case a father applies to withdraw his application for contact with his 12 year old son (identified in the attached judgment only as O). For that, he needs the court's permission. The application is not opposed either by the child's mother, or by CAFCASS Legal (the Children and Families Court Advisory and Support Service) which represents O.
The result is that O will have no direct contact with his father for the foreseeable future, although the father is free to write letters and send presents and cards on the son's birthdays, as well as at Easter and Christmas. The judgment explains how this unhappy state of affairs has come about.
Normally, where a parent wishes to discontinue proceedings, the court does not give a full judgment. It is usually sufficient simply to record that the parties are agreed that this is the right course. However, in this case, my reasons for granting the application are not the same as the father's reasons for making it, and I need to set them out.
Furthermore, the case seems to me to illustrate the number of more general points relating to contact applications of which the public may not be fully aware. This is another reason for my decision to give my full reasons in open court.
The normal rules about anonymity will apply to this judgment. I explain the reasons for the anonymity rule in paragraphs 9 to 12 of the judgment.
The particular points which this case illustrates are, in my judgment, the following: —
The intractable nature of some contact disputes and the strength of the feelings they engender
(1) Disputes between separated parents over contact to their children are amongst the most difficult and sensitive cases which judges and magistrates have to hear. Nobody should pretend that they are easy, or that there is any one size fits all solution.
(2) Profound emotions are often aroused in contact proceedings. The children concerned become the battle ground on which are fought out the wrongs which the parents perceive each did to the other during the period they lived together. In the instant case, the father accuses the mother of child abuse, perverting the course of justice, defamation of character and perjury. A measure of O's distress at what was happening was his statement to the independent social worker appointed in the county court: "It is like a war. You know they are fighting and they are fighting over me".
The critical role of both parents in the lives of their children post separation
(3) The courts recognise the critical importance of the role of both parents in the lives of their children. The courts are not anti-father and pro-mother or vice versa. The court's task, imposed by Parliament in section 1 of the Children Act 1989 in every case is to treat the welfare of the child or children concerned as paramount, and to safeguard and promote the welfare of every child to the best of its ability.
Terminating non-resident parents' contact with their children is a matter of last resort
(4) Unless there are cogent reasons against it, the children of separated parents are entitled to know and have the love and society of both their parents. In particular, the courts recognise the vital importance of the role of non-resident fathers in the lives of their children, and only make orders terminating contact when there is no alternative.
Parental alienation
(5) The father asserts that this is a case in which the mother has deliberately alienated O from him. It is not. The principal reason that O is hostile to contact with his father is because of his father's behaviour, and not because his mother has influenced O against his father. Unfortunately, the father is quite unable to understand or accept this. The father's reliance in this case on the so called "parental alienation syndrome" is misplaced.
Blaming the system
(6) The court system for dealing with contact disputes has serious faults, which were identified and addressed in Chapter 10 of the report of the Children Act Sub-Committee (CASC) of the Lord Chancellor's Advisory Board entitled Making Contact Work. I discuss these further in paragraphs 83 to 86 of the judgment. In particular, the court process is stressful for both parents and children, it is expensive for those who are not publicly funded; it is slow and adversarial. It tends to entrench parental attitudes rather than encouraging them to change. It is ill adapted to dealing with the difficult human dilemmas involved, notably when it comes to the enforcement of its orders.
Parental responsibility for the failure of contact
(7) Parents must, however, take their share of responsibility for the state of affairs they have created. Blaming the system, as the father does in this case, is no answer. He must shoulder his share of the responsibility for the state of affairs he has helped to bring about. All the evidence is that he has proved incapable of doing so.
Joint residence orders
(8) The suggestion, made by the father, that joint residence orders should be standard is not, in my judgment, an answer. There may well be more cases than we have up to now recognised in which joint residence orders are appropriate. The philosophy behind such orders (the exercise of ongoing parental responsibility by both parents post separation) is contained within the Children Act and is sound. But joint residence orders are not a panacea, and such an order would be quite inappropriate in this case.
Alternative methods of resolving contact disputes
(9) Fortunately, most separating parents are able to negotiate contact without the need to go to court. Contact disputes are best resolved outside the court system. Making Contact Work identified a number of ways in which this court be achieved.
(10) Contact in my experience works best when parents respect each other and are able to co-operate; where the children's loyalties are not torn, and where they can move between their parents without tension, unhappiness or fear of offending one parent or the other. Such cases rarely come to court.. The courts, therefore, have to deal with the cases in which there is no agreement. These are often, like the present case, the most intractable.
This case
(11) This is, accordingly, once of those rare cases in which an order for direct contact would be both ineffective and counter-productive. I reach that conclusion with regret. I am, however, reassured by the opinion of the child psychiatrist Dr. B that in late adolescence or early adulthood O is likely to revisit his decision not to have contact with his father. I hope the father also takes heed of Dr. B's message that if he maintains his hostile attitude to O's mother, O is likely to remain alienated from him..
The application
In this case, the father of a 12 year old boy (whom I will call O) seeks the court's permission to withdraw his application for an order granting him direct contact with O. Pursuant to Rule 4.5(1) of the Family Proceedings Rules 1991 (FPR), an application to withdraw proceedings under the Children Act 1989 requires the permission of the court. It is a serious matter, and not a formality.
The father in this case made his application for permission to withdraw on 24 November 2003, at what was intended to be the pre-hearing review of his application for contact, which was itself due to be heard over three days starting on 10 December 2003. Having heard the father in person, counsel for O's mother and counsel representing O instructed by the Legal Department of the Children and Families Court Advisory and Support Service (CAFCASS Legal) I decided that the father should have permission to withdraw his application, but that I would put into writing my reasons for granting permission. This I now do.
Publicity and the prohibition of any identification of the child
This judgment is being handed down in open court and is a public document. In my judgment the issues it raises as identified in paragraph 6(1) to (11) warrant public discussion. The case has, however, been anonymised, and nothing may be published which identifies O whether by name or location.
The principal reason judges and magistrates hear cases relating to children in private is to protect the children concerned from harmful publicity. Moreover, these are not judge made rules. Rule 4.16(7) of the Family Proceedings Rules 1991 (FPR) provide that unless the court otherwise directs, proceedings relating to children shall be heard in private. Secondly, Parliament, in section 97(2) of the Children Act 1989 has specifically provided that: -
No person shall publish any material which is intended, or likely to identify –
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