Successful Appeal against No Order for Contact

Click Image to open R (A Child)

R (A Child) [2014] EWCA Civ 1664

A successful appeal against the court having ordered no contact with CAFCASS supporting that decision. The lower court had not considered alternatives which might allow the re-introduction of contact.

"14. The judge made no explicit reference to section 1(3)(g), which requires the court to consider the range of powers available to the court under the Act, other than by saying that he had full powers to deal with the case appropriately. In particular, he did not in terms consider the possibility of supervised direct contact. He therefore came to the conclusion that he must follow the recommendation of the court welfare officer. He said that he did so with a heavy heart, because he saw the father's point:"

"... that if only she could take a few initial steps towards a meeting, that would bring her the reassurance that she craves, would dispel worries and concerns and everything would be fine.""

It is also worth noting paragraph 16:

"[16] The applicable legal principles are clear. First, the welfare of R is the paramount consideration for the court. It takes precedence over any other. Second, the court has in a series of cases stressed the importance of contact between parent and child as a fundamental element of family life, which is almost always in the interests of the child, and which is to be terminated only in exceptional circumstances, where there are cogent reasons for doing so and when there is no alternative. Contact is to be terminated only where it would be detrimental to the child's welfare. The judge has a duty to promote such contact and to grapple with all available alternatives before abandoning hope of achieving some contact. Contact should be stopped only as a last resort and once it has become clear that the child will not benefit from continuing the attempt. The court should take a medium to long term view and not accord excessive weight to what appear likely to be short term and transient problems. The key question is whether the judge has taken all necessary steps to facilitate contact, as can reasonably be demanded in the circumstances of the particular case; Re C (a Child) [2011] EWCA Civ 521."

The case is encouraging, and looks to the long-term in respect of the importance of assisting the rebuilding of the parent/child relationship. The child was 11 years old and there had been a gap of 7 years between contact, with indirect contact starting in 2012 which was unproductive. The lower court had left matters to the child in respect of contact happening in the future. At appeal, Lord Justice Christopher Clarke said:

"18. The effect of the judge´s order is to preclude all contact between father and daughter, even indirect, unless R should choose otherwise. It contains no provision which might encourage or facilitate contact in the absence of R making that choice. Such an order is rightly described as Draconian."

You'll find this summary on our Parental Alienation and Intractable Contact Dispute Case Law Library (at the bottom of the list of judgments). To go directly to the judgment to read it or download it, click the image above or the following text:

R (A Child) [2014] EWCA Civ 1664

New Case Law: Leave to Remove

H v F (Relocation) [2014] EWFC 11 does not provide new points of law, but is worth discussing none the less, and carries an important message.

The court was faced with a stark choice, a very young child relocating to New Zealand or remaining in the UK. Either situation would result in one or other parent having contact over some considerable distance and have an impact on their relationship with their child, and their child's relationship with them. Both parents were fully involved in the child´s care before separation, and both capable of providing adequate care. The mother had no support network in the UK.

The father had a visa to work in New Zealand so the parties were not on an equal footing in terms of their immigration status.

The maternal grandparents had maintained a non-combative stance, something which the paternal grandmother had failed to achieve. Additionally, the father had made allegations about the mother, and the court had formed an opinion that the father was highly critical of the mother, and if he became the parent with whom the child lived in the UK, the court was uncertain whether he would fairly represent the mother to the child.

Allegations by the father, including that the mother was a habitual drug user, were found to be untrue.

Litigants should note the risks of what may be viewed as an unreasonably combative stance, or in making allegations without evidence to support them.

An important factor in leave to remove cases are the parent´s willingness to promote contact and support contact.

Parents often forget that an important aspect of cases is credibility, how they present in court, and the approach they, not just related to proceedings, but to their ex-partner in general. When dramatic changes to one's life are being considered, it's understandable that parents become stressed, anxious and fearful. It's commonplace, and especially in leave to remove/relocation cases. At times, that emotional reaction lends itself to taking too combative an approach, which risks undermining their case. 

If both parents are at each others' throats, the court may decide the child needs to be removed from the conflict, so leave to remove may be granted. If one parent is combative, in terms of allegations and their presentation in court, and the other is not, the combative parent risks the court forming the view that the other parent is more child focused and more likely to support and promote contact.

In terms of allegations, it's important to raise the question as to whether something is a risk, or a real risk.

I don't view this case as representing a re-emergence of the distress argument in leave to remove cases as a dominant factor, as some may fear. There are a number of mitigating factors for leave to remove being granted. That said, there is an important lesson in the judgment, in that every course of action carries potential risks and rewards. To my mind, and in my experience, the combative approach is a high risk strategy and often unwise, and an approach best avoided unless there is very clear and compelling evidence to support that anxiety is justified, and that risks are very real. Not just a 'tactic' for court, but for life after.