A Flabby Judicial Response

The one great principle of the English law is, to make business for itself.  There is no other principle distinctly, certainly, and consistently maintained through all its narrow turnings.

Charles Dickens (Dickens, 1852-53)

The courts do not, as they claim, err on the side of caution when they exclude a father but on the side of danger: it is the presence of a father which most protects a child from abuse.  Tragically, this is a nettle the UK courts are unwilling to grasp.  The system’s failings are illustrated by the appalling case of Re S (Re S (A Child), 2010a), a case which somewhat mirrors Re D and provides evidence the system had neither changed nor learned from Munby’s recommendations.  The judge, Clifford Bellamy, even quoted Munby’s judgement (Warwickshire County Council v TE & Ors, 2010),

On 21 July 2010 a wholly deserving father left my court in tears having been driven to abandon his battle to implement an order which I had made on 4th January 2010 that his son, S, now aged 12, should move to live with him.

Two parents separate before their son is born and spend the next 10 years locked in conflict: the mother tries to eliminate the father while he remains determined to remain involved.  He manages to establish and maintain contact from when his son is a toddler until shortly before his 8th birthday.  Contact then breaks down for 4 years.  On 4th January 2010 when S is 11 the court orders a transfer of residence to the father he is now said to hate (Re S (A Child), 2010b).  His mother declares she supports contact, but obstructs all attempts to enable it.  Lord Justice Thorpe says that, although the boy’s opposition to transfer ‘deserves respect’ and the boy will suffer ‘significant distress’ in the short term, he will suffer ‘emotional harm’ if the mother’s alienation continues.  The mother appeals against the decision and on 21st January her appeal is dismissed.

In March the court orders the mother to take S to his father’s house; if she refuses the court tipstaff will be engaged, meaning the forcible removal of the child to the father’s house by police officers  (Re S (A Child), 2010c).  The child’s guardian appeals (Re S (A Child), 2010d):the severely alienated child is threatening to run away or go on hunger-strike if forced to live with his father; lawyers claim that forcibly removing S from his mother will breach his human rights.  Following a request by the mother’s lawyer, Lorna Meyer, the court rules that the boy be placed in interim foster care for 21 days to acclimatise to being removed from his mother, during which time he will have direct contact with his father and indirect contact by phone with his mother.  S refuses to cooperate, and the social worker involved becomes ‘most concerned for his emotional and mental health’, advising the father that no further good can come with S remaining in foster care.  A consultant child psychotherapist reports,

S is an extremely distressed and unhappy little boy who shows numerous clinical symptoms of a depressive illness… [If] the current external situation regarding court and contact remain unchanged there is a high risk that S will begin to act upon these ideas of self-harm.  He is experiencing feelings of despair and hopelessness, worthlessness, and cannot see any hope for the future… All of these would point to an eligibility for a diagnosis of clinical depression.

Accordingly the father agrees on 25th March that S shall return to his mother under an interim care order.  Further attempts at contact fail.  On 13th July the despairing father withdraws his application for residence made on 4th January.  On the 21st July the parents agree that residence will remain with the mother under a supervision order for a year, with the father to have only indirect contact.  A Section 91(14) order prevents further applications until the child is 16.  The case comes to an end on 11th August (Warwickshire County Council v TE & Ors, 2010).

Perversely Bellamy entertained three different options from three experienced and highly regarded practitioners: the first was lawyer Lorna Meyer’s ‘stepping stone’ approach, using an interim care order to provide an initial acclimatisation period in foster care.  S refused to cooperate with this and it failed.  The second was offered by Karen Woodall, then director of the Centre for Separated Families, who provided 13 sessions of therapy totalling over 24 hours which proved highly intensive and distressing to S and resulted in only a ‘tiny’ advance.  The third was provided by the consultant child and adolescent psychiatrist Kirkland Weir who was brought in as an expert witness and considered that Woodall’s therapeutic approach could not overcome the child’s resistance to seeing his father, and was even making the situation worse.  Weir advocated a robust approach, using the court Tipstaff if necessary to enforce contact,

I am looking at the first visit being very long and to be kept going until S is prepared to answer his father and… look him in the eye ending in a change of attitude.  It may take hours…  Indications from other cases are that threats are not persisted with.  They may end in hours or 2/3 days and then things change… and it is OK.

Such an approach can be effective.  In Re R in 2009 Nicholas Wall upheld the earlier ruling by Ian Bond (Re R (A Child), 2009) and gave a child just three days to pack his bags and move in with his father, acknowledging that the move would be ‘almost cataclysmic’ for him (Gammell & Savill, 2009).  Nevertheless, the CAFCASS guardian and child psychiatrist were in agreement that the denial of contact with his father was causing the boy emotional harm and recommended transfer of residence.  Although the boy had been severely alienated and claimed his father had ‘ruined my life’ and that he would ‘punch and kick’ later reports showed he had settled in well, once away from his mother’s malign influence.

Re S was complicated further through seeking the views of a social worker who rejected the very concept of alienation and opposed Weir’s solution as a breach of S’s rights.  Bellamy concluded there was insufficient evidence available to determine the best approach, and that no expert had the necessary experience to advise.  No one involved – judge, parents, lawyers, children’s guardian, social workers, local authority and child experts – agreed what should happen to S or how it should happen.  They didn’t even agree that parental alienation existed or S was its victim.  Incredibly the two therapists instructed to restore contact ‘had no experience of working with families in high conflict cases or, more importantly, of working with alienated children’.  The social worker claimed improbably, ‘despite my 21 years of experience in social care, high conflict cases and child protection, prior to this case, I did not have any previous experience in alienation’.  The impasse reached was thus as much between the various experts and other professionals paralysed by trade disagreements as it was between the parents: unable to agree they simply gave up.  This pattern, in which important and highly conflicted cases are put into the hands of inexperienced (and even student) case workers, recurs.  The final outcome was inevitable; Bellamy added a postscript recording that S had intimated ‘this was not the end and he would think about seeing his father after his GCSEs’.

The case of Re S illustrates, too, the problem of the courts’ reliance on expert witnesses.  The purpose of the expert is to provide evidence beyond the knowledge of the typical judge.  For this they charge fees ranging from £4,000 to £100,000 while they are routinely protected from identification – a use of anonymity which cannot possibly be excused on the grounds that it protects children.  One effect of this is that it hides patterns; the history of family law is littered with expert witnesses who were in reality pursuing their own personal programmes.  In more conflicted cases it is essential that those involved should either have the requisite experience and expertise or defer to those who have.  One person only should then take responsibility for deciding the course of action to be taken and for following it through.  It is possible the intervention either of Kirkland Weir or of Karen Woodall could have worked; bringing two people into the case with such divergent approaches was a recipe for disaster.

The pattern of contact and residence with which a case comes to court is often the pattern with which the case leaves court, thus lawyers have an important role to play in determining outcomes: fathers are unlikely to go against their lawyers’ recommendations to cede mothers residence and apply for limited contact.  Orders for contact are made on the basis of what a mother will tolerate, rather than on what is necessary if a child is to maintain a meaningful relationship with a father, and so the best interests of the child are compromised to achieve maternal cooperation.  ‘Cooling-off’ periods are ordered, during which judges terminate contact for months or even years; again, this is matricentric and not child-focused.  Breaches of contact orders are ignored to pacify a recalcitrant parent, and contact levels are repeatedly reduced in an attempt to find an acceptable level of contact, thus contact becomes eroded over successive hearings, and often over a period of years.  A responsible and effective system would seek to modify the attitudes of parents and work with them towards resolution; it would assist parents in putting aside the grievances which led to their dispute and cooperate for the benefit of their children; it would enforce its orders.  These things the system chooses not to do.

Judges sometimes get as frustrated at this as fathers; in a 2011 case involving thwarted contact Nicholas Wall exclaimed petulantly, ‘There is clear evidence that the little girl wants to spend time with her father, and there is clear evidence that on occasions the mother has deliberately frustrated contact between her own daughter and the father.  How any mother can sleep easy having behaved in that way I find difficult to understand’ (Re H (A Child), 2011).

In January 2004 Lord Filkin, Minister for the Family Courts, gave voice to what thousands thought, ‘Any court that does not enforce its own orders is a sham’.  Failure to enforce its own orders loses the family court credibility and lends credence to the charge that it is biased against fathers: an unenforced order is worthless, and an open invitation to the obstructive.  A survey of legal professionals by Cardiff University law students dismissed the enforcement of contact orders as ‘an absolute joke’ (Dyer, McCrum, Thomas, Ward, & Wookey, 2008).  One solicitor with over 27 years’ experience had seen only two orders enforced.  In Re D Judge James Munby lamented the tendency of courts to shun enforcement in favour of renegotiating with mothers,

Efficient enforcement of existing court orders is surely called for at the first sign of trouble.  A flabby judicial response sends a very damaging message to the defaulting parent, who is encouraged to believe that court orders can be ignored with impunity, and potentially also to the child (Re D (Intractable Contact Dispute: Publicity), 2004).

In V v V Joyanne Bracewell – ‘one of the more enlightened members of the judiciary’, according to Fathers4Justice – outlined the difficulties for the court in what has become a defining narrative,

Enforcement of contact orders creates insuperable problems for the courts.

Currently, there are only four options available to the court and each is unsatisfactory:

One, send the parent who refuses or frustrates contact to prison, or make a suspended order of imprisonment.  This option may well not achieve the object of reinstating contact.  The child may blame the parent who applied to commit the carer to prison.  The child’s life may be disrupted if there is no one capable of or willing to care for the child when the parent is in prison.  It cannot be anything other than emotionally damaging for a child to be suddenly removed into foster care by social services from a parent, usually a mother, who in all respects except contact is a good parent.

Two, impose a fine on the parent.  This option is rarely possible because it is not consistent with welfare of a child to deprive a parent on a limited budget.

Three, transfer residence.  This option is not necessarily available to the court, because the other parent may not have the facilities or capacity to care for the child full-time, and may not even know the child.

Four, give up.  Make either an order for indirect contact or no order at all.  This is the worst option of all and sometimes the only one available.

The courts’ ultimate sanction when faced with a parent who will not modify their behaviour is to commit that parent to prison; breach of an order is contempt of court and must be proved by the applicant to the criminal standard.  In 1997 Nicholas Wall rejected a mother’s appeal against a committal order,

[The lower court judge] was fully mindful of the distressing consequence of imprisonment on the child and indeed the other child of the mother, but he balanced against that the importance of this child knowing her father as she grows up and the long-term damage she will suffer (A v N (Committal: Refusal of Contact), 1997).

Wall continued defensively that the message should—

go out in loud and in clear terms that there does come a limit to the tolerance of the court to see its orders flouted by mothers even if they have to care for their young children.  If she goes to prison it is her fault, not the fault of the learned judge who did no more than his duty to the child which is imposed upon him by Parliament.

Committal, however, has remained very rare and the courts will generally avoid it as contrary to the best interests of the child; it isn’t necessarily effective and it hands children a weapon they should never wield: if they agree to contact they can save an implacable parent from prison; by refusing they condemn her.  In many cases judges censure mothers for flouting orders but fail to do anything about it (F v M, 2004) (A v A, 2004) (C v C, 2004); this is how one judge excused himself (Hunt & Macleod, 2008),

How can you send to prison a mother with several children?  It goes through stages; we are encouraged to be bold enough to send mothers to prison.  But on a practical basis it doesn’t work.  And you’re dealing with these mothers who will tell the kids as they’re coming out of the front door with their bag, ‘I’m going to court, your father is getting me sent to prison’.  And how is that going to assist the relationship?

The case of Re K further established that imprisonment would infringe the human rights of a mother and her child and that committal must be justified under Article 8(2) (the right to freedom from state interference in one’s private life) (Re K (Children: Committal Proceedings), 2003).  Other remedies such as further contact orders, fines, family therapy and transfer of residence must be attempted first (Re M (Contact Order: Committal), 2004).  The number of parents committed for breach of orders isn’t recorded (Hansard, 2006c) nor is any information which would indicate the effect of committal on contact or on children, so the belief it is ineffective or not in a child’s best interest is not necessarily supported.  The result of this timid approach is inevitably a loss of contact for children and loss of credibility for the courts.  When contact does not happen the onus is on the applicant to prove the other parent is obstructing it, and not on that parent to explain why contact ordered is not taking place; this was established by a case (Re L-W, 2010) in which a father found to have breached no fewer than six orders for contact was given a suspended sentence of 28 days.  He appealed successfully on the grounds that his son was entrenched in his opposition to contact and he could not force him.  Clearly judges were making orders that could not be enforced.

In V v V Bracewell reluctantly chose her third option: to transfer residence.  The rationale is that the parent to whom residence is transferred will enable contact with the other and the child will have satisfactory relations with both parents restored.  Transfer of residence is preferable to committal or simply giving up, which is what fathers find the courts do in far too many cases.  In Re A a father whose contact had been interfered with and frustrated over a long period of time sought transfer of residence instead of committal  (Re A (Residence Order), 2007).  Assessments by a psychologist and a social worker agreed the mother was suffering from a personality disorder and had no insight into her behaviour which would ultimately lead to psychological problems for the child.  The court concluded it would be in the child’s best long-term interests to live with the father and the mother’s appeal was dismissed.  In Re C the Court of Appeal considered the case of a five-year-old child whose father had become a ‘virtual stranger’ to her because of the mother’s implacable opposition to contact (Re C (Residence Order), 2007).  The court ordered the transfer of residence from the mother to the father, dismissing the mother’s appeal.  Alan Ward declared,

As to the option to make no order, that was the option of abdication and all too frequently judges are driven to that conclusion and that is why week after week fathers come to this court protesting that the court is powerless to enforce its orders, quite unable to control the intractable, implacably hostile mother, even though the long-term damage to the child is perfectly obvious.  Time after time this court has to mollify the angry father, endeavouring to explain that the judge has a broad discretion and that his decision cannot be challenged unless plainly wrong.  This time the boot is on the other foot, and if a different conclusion has been reached in this case then let it be shouted out from the roof-tops.

Transfer of residence is controversial and provokes strong reactions from those who think mothers should retain residence regardless of behaviour.  The arguments for and against are finely balanced; it is a crude tool with which to enforce something as delicate as contact.  Many judges employ Bracewell’s fourth option: they simply give up – or order indirect contact, which is the same thing.  The courts will transfer residence only if the risk of doing so is outweighed by the risk of not doing so: long-term emotional harm must exceed short-term distress.  In 2009 Mathew Thorpe allowed an appeal against transfer to the father because the risk of the mother frustrating contact did not outweigh the risk to the children of transfer,

The transfer of residence from the obdurate primary carer to the parent frustrated in pursuit of contact is a judicial weapon of last resort.  There was hardly a need for a psychologist to establish the risks of moving these girls from mother to father… The risks of gamesmanship from the mother in the future, confirmed in residence but nailed down with a clear detailed contact order, were plainly less, and from that essential risk balance the judge was diverted (Re A (Children), 2009).

One ingenious alternative to actually transferring residence is to threaten to do so by making a suspended residence order; the intention is to change the parent’s behaviour, not to carry out the threat.  The order was devised by Sir Paul Coleridge who describes it thus,

It works in the same way as a suspended committal order but without the irritating technicalities attached to enforcement by committal.  The court attaches clear conditions which if breached lead to immediate removal of the children to the other parent.  The advantage of this order, in these intractable cases, is that the outcome lies entirely in the hands of the defaulting parent (which, of course, is made clear to him or her at the time of the making of the order)… There are three conditions I would attach to this suspended residence order approach.  Firstly, and obviously, the judge must be satisfied, at the time the suspended order is made, that the alternative home is good enough.  Secondly, it must be made abundantly clear to the parent concerned that you really mean what you say, and finally there must be judicial continuity throughout.  The authority must come from the judge not the process (Re A (suspended residence order), 2010).

The report Parental Separation: Children’s Needs and Parents’ Responsibilities (Departments for Education and Skills, Constitutional Affairs & Trade and Industry, 2004) comprehensively identified the existing problems within the family courts,

  • Some claim that the current law, or its interpretation in practice, does not give non-resident parents, usually fathers, the relationship with their child that they should have;

  • The process for identifying and verifying safety issues is ineffective and slow;

  • The current legal aid structure rewards litigation rather than settlement;

  • The lengthy and adversarial nature of court proceedings can exacerbate acrimony between separating couples, making things worse rather than better;

  • Court decisions are often backward looking rather than focused on reaching workable solutions for the future;

  • Some non-resident parents (usually fathers), feel they have not been given adequate contact when they have been fully involved in their child’s care before separation;

  • Some non-resident parents (usually fathers) feel the courts are biased toward the status quo and favour the resident parent (most often mothers) and that delays in arriving at decisions worsens [sic] this tendency;

  • Relatives in the wider family (particularly grandparents) lose contact following separation, in particular where their contact is linked to the non-resident parent’s;

  • Some resident parents (mostly mothers) feel that the courts allow contact in a way that puts their or their child’s safety or wellbeing at risk;

  • Resolution is treated as a one-off event rather than an on-going process at which parents need to work over the long term;

  • Court ordered contact is poorly enforced and some cases go back to court repeatedly, with the courts being unable to resolve them.

As so often happens in family law, by the time proposals for more effective monitoring and enforcement had been passed through both Houses of Parliament they had been emasculated and had their teeth pulled.  The Children and Adoption Act 2006 which followed offered a feeble set of sanctions.  Under the new legislation the courts could—

  • order parents to attend information and assessment sessions about mediation, Parent Information Programmes (PIPs), or programmes aimed at addressing violent behaviour;
  • impose an ‘unpaid work requirement’ (this used to be called Community Service);
  • award financial compensation from one party to another; and
  • direct CAFCASS to monitor compliance with contact activity directions and contact activity conditions.

We shall disclose the impact the sanctions had in Chapter Thirty-One.

Works Cited

A v N (Committal: Refusal of Contact), [1997] 1 FLR 533 (1997).

Re K (Children: Committal Proceedings), [2003] 2 FCR 336 (2003).

A v A, [2004] EWHC 142 (FAM) (High Court 2004).

C v C, [2004] EWCA Civ 512 (Court of Appeal 2004).

F v M, [2004] EWHC 727 (High Court 2004).

Re D (Intractable Contact Dispute: Publicity), [2004] EWHC 727 (Fam) (High Court 2004).

Re M (Contact Order: Committal), [2004] EWCA Civ 1790 (Court of Appeal 2004).

Re A (Residence Order), [2007] EWCA Civ 899 (Court of Appeal 2007).

Re C (Residence Order), [2007] EWCA Civ 866 (Court of Appeal 2007).

Re A (Children), [2009] EWCA Civ 1141 (Court of Appeal 2009).

Re R (A Child), [2009] EWHC B38 (Fam) (High Court 2009).

Re A (suspended residence order), [2010] 1 FLR 1679 (Court of Appeal 2010).

Re L-W, [2010] EWCA Civ 1253 (Court of Appeal 2010).

Warwickshire County Council v TE & Ors, [2010] EWHC B19 (High Court 2010).

Re S (A Child), [2010] EWCA Civ 219 (Court of Appeal 2010a).

Re S (A Child), [2010] EWHC 192 (High Court 2010b).

Re S (A Child), [2010] EWHC B2 (High Court 2010c).

Re S (A Child), [2010] EWCA Civ 325 (Court of Appeal 2010d).

Re H (A Child), [2011] EWCA Civ 585 (Court of Appeal 2011).

Departments for Education and Skills, Constitutional Affairs & Trade and Industry. (2004). Parental Separation: Children’s Needs and Parents’ Responsibilities. London: HMSO.

Dickens, C. (1852-53). Bleak House. London.

Dyer, C., McCrum, S., Thomas, R., Ward, R., & Wookey, R. (2008). Enforcement of Contact Between Children and Non-Resident Parents. Family Law Research Project, Cardiff Law School, Cardiff.

Gammell, C., & Savill, R. (2009, November 20). Judge orders boy to live with father against his wishes. Daily Telegraph.

Hansard. (2006c, July 4).

Hunt, J., & Macleod, A. (2008). Outcomes of applications to court for contact orders after parental separation or divorce. University of Oxford, Oxford Centre for Family Law and Policy, Department of Social Policy and Social Work. Oxford: University of Oxford.