Are you struggling to establish direct contact due to a hostile partner? Article by family lawyer David Parkes.
I have represented many parents seeking contact with their children. Stereotypically this means representing the father and in most cases that is correct. Sadly and like all family solicitors I have also had cases when the parent seeking contact (and I have acted on both sides) has not secured direct contact. This has usually been in a case where the parent with care is regarded as ‘implacably hostile’ to contact and not because of any wrong doing or risk posed by the parent seeking contact. This often results in the parent seeking contact being unable to see their children. I now wonder whether this should ever be able to happen in a case, particularly considering recent judgements such as of A (A Child) [2013] EWCA Civ 1104 and M (Children) EWCA Civ 1147.
In A (A Child) [2013] there had been no fewer than 82 Court Orders and the proceedings had been ongoing for approximately 12 years. There had been allegations of sexual abuse followed by a five day hearing at which the father was cleared of any wrongdoing by the court. Despite this the mother remained hostile to contact and it seems that her opinions had rubbed off on the child. There had been 7 judges and 10 Cafcass Officers involved. For those of you who have been fortunate enough to have avoided the family justice system you might find this hard to believe however those who have had dealings with them might be thinking this sounds rather familiar. That said my own experience is that litigation over that period of time is rather unusual and thankfully for those involved the case finally made its way to the Court of Appeal and before Lord Justice McFarlane.
So what does this case tell us? Well it is a helpful case for any father who finds themselves having to seek court orders because of a mother who is ‘hostile’. Firstly this case confirms that an order that would refuse direct contact with a parent will engage Article 8 of the European Convention on Human Rights. Article 8 is the right to respect for private and family life. Secondly is the issue of enforcing Contact Orders. Those who have attempted in the past will know the uphill struggle you often face. This case may go some way to change this. The reason I say this is because at paragraph 60 of his Judgment Lord Justice McFarlane states: “The first time that a judge should give serious consideration to whether or not he or she will, if called upon, be prepared to enforce a contact order should be before the order is made and not only after a breach has occurred”. Previous cases are also quoted confirming that“orders of the court are made to be obeyed”. I will certainly have a copy of Lord Justice McFarlane’s Judgment with me when I next apply for an Enforcement Order.
Perhaps most importantly Lord Justice McFarlane felt that despite the lengthy history of the case, the age of the child, the child’s wishes and feelings (no doubt influenced by mum in this particular case) and all the resources that had been exhausted felt that consideration should be given to the instruction of a multi-disciplinary team of experts. This to me represents the ‘no stone unturned’ approach that ought to be followed in all cases concerning children. In another case - M (Children) EWCA Civ 1147 - Lord Justice Macur commented that in order to reach the conclusion that there should be no contact, the court must consider and discard all reasonable and available avenues which may otherwise promote the children's rights to respect for family life, including, if in the interests of promoting their welfare during minority, contact with their discredited father.
In my experience some magistrates or judges (together with professionals) are too quick to turn the lights out on applications for direct contact simply because of the mother’s hostility or the child’s wishes and feelings. The big question is with cuts across Cafcass, Social Services and Legal Aid who will pay for ‘multi-disciplinary’ teams of experts.
Is a Contact Order worth the paper it is written on?
The short answer is yes. As I have quoted above “orders of the court are made to be obeyed”.
Hints/Tips
The following is a list of hints/tips that should be considered by any father experiencing difficulty in securing contact:
1. Consider what is best for your child. This is what any Judge will do so start your case with the same focus.
2. If possible/appropriate try to speak/reason with the mother. Even if this means ‘losing face’ ultimately the possible prize is worth it.
3. If the above does not work take early advice and act on it.
4. Consider referral to a family mediation service. Any solicitor who specialises in Children Law should be able to provide you with details and make the referral.
5. If mediation/negotiation does not work don’t be scared to issue court proceedings.
6. Get your house in order at an early stage. What I mean by this is that if you have any evidence that will support your application (making sure it is relevant) then ensure this is made available.
7. Don’t dismiss the possibility of a second go at mediation. It is amazing how a court application can focus the mind and change the other parents view on mediation.
8. Remember you are more likely to be frustrated at the timescales rather than the end result. There is no two ways about it, the Family Justice System can at times be a slow process. Stay patient and focused on what you want to achieve.
9. Remain dignified and measured.
Author Bio
David Parkes is a specialist Family Law Solicitor and member of the Law Society Children Panel. He is also a Partner at Bakers Solicitors. David has two young daughters of his own and as a male solicitor specialising in family he is often instructed by fathers who are struggling to establish contact with their children.
You can contact David on 01457 859123 or by email; dparkes@bakers-solicitors.com
This article is from DadzClub
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