Intractable Contact Disputes: Important New Case Law`

A (A Child) [2013] EWCA Civ 1104
In this case, the court had acknowledged that it was the mother's intractable and unreasonable position which was the bar to contact, but felt helpless to intervene. The case came after years of returns to court. An important judgment, where the trial judge had made an order allowing only indirect contact for the father, restricted to Christmas and his daughter's birthday. This was an intractable contact dispute, caused by the mother's hostility to contact. While not an alienation case per se (albiet the child is clearly torn between her own wish for contact and loyalty to the mother and her opposition), McFarlane LJ upheld the approach taken in Re S (Transfer of Residence) [2010] EWHC 192 (Fam) that while noting the importance of a child's wishes and feelings, the court must consider too whether those wishes and feelings are rational and reasonable.

MacFarlane endorses Munby LJ's guidance in Re L-W (Children) [2010] EWCA Civ 1253 that there needs to be judicial continuity, judicial case management including effective timetabling, a judicially set strategy for the case; and consistency of judicial approach. He goes further in paragraph 60:

´If, as part of that strategy, the court makes an express order requiring the parent with care to comply with contact arrangements, and that order is breached then, as part of a consistent strategy, the judge must, in the absence of good reason for any failure, support the order that he or she has made by considering enforcement, either under the enforcement provisions in CA 1989, ss 11J-11N or by contempt proceedings. To do otherwise would be to abandon the strategy for the case with the risk that a situation similar to that which has occurred in the present case may develop; to do otherwise is also inconsistent with the rule of law.´

The father's appeal was successful. While the outcomes recommended by the trial judge were not necessarily in themselves wrong, the systemic failures over a period of years did amount to a breach of the child´s and father´s right to family life under the Equalities and Human Rights Act and MacFarlane suggested the involvement of a multi-disciplinary team to progress matters. The matter was moved to the High Court for the father´s application for contact to be reheard.

It's important to consider that the Human Rights argument was supported by the unique facts of this case. It would be wrong to assume any inference as to a principle being established that the courts must uphold a father's right to family life (in Children Act cases, child welfare will always be the court's paramount consideration, and the litigant should focus on child welfare arguments first). In this case, the child wanted contact (albeit her loyalty was torn), the mother clearly opposed contact and there were case management failures.

There is a growing body of case law to support a parent faced by the other parent's hostility to contact. Things remain difficult, as the circumstances of this case are not uncommon.

The full text of the cases Re S (Transfer of Residence) [2010] EWHC 192 (Fam), Re L-W (Children) [2010] EWCA Civ 1253 and A (A Child) [2013] EWCA Civ 1104 can be viewed in smartphone/tablet friendly format on our online Family Law Application. We have also included A (A Child) [2013] EWCA Civ 1104 as a download in pdf format should you wish to refer to it in evidence.

Important Appeal - Father's Right to Family Life upheld

In a groundbreaking case, Lord Justice McFarlane upheld the father's appeal, citing that his and the child's right to family life had been failed by the lower court.

Of particular interest will be paragraphs 77 and 78.

Download the full judgment here.

77. Drawing matters together, whilst I do not conclude that the outcome ordered by the judge is, of itself, wrong and therefore to be set aside, I am sufficiently concerned about the process of these proceedings as a whole, which I have held has violated the Art 8 rights of both M and her father, and also by the deficits in the judge’s analysis which I have now identified, to conclude, in the words of CPR, r 52(11)(3), that the outcome is ‘unjust because of a serious procedural or other irregularity’. For the previous systemic failure to end in a hearing which itself was highly unsatisfactory and where the judge has failed to conduct a sufficiently thorough analysis, makes it almost inevitable that this court will consider that it has a duty to intervene with the aim of establishing an effective and full rehearing.

78. This decision is made with a heavy heart as I fully understand that the idea of reopening these matters before the court will be a profoundly unwelcome one for M. That it is necessary, for the reasons that I have given, I am clear, just as I am clear that, on this rare occasion, part of the responsibility for this turn of events rests with those of us who work in the Family Justice system. But sight must not be lost of the place where the ultimate responsibility for this situation plainly rests, which is with the parents and, in this case, with M’s mother in particular. It is she who has, on the judge’s clear and unchallenged findings, doggedly refused to allow M to  develop and maintain a relationship with her father without any good reason whatsoever for so doing; it is she, should she wish to do so, who could now unlock this intractable situation and permit her daughter to have some form of normality and balance in her relationship with her parents as she goes through her teenage years and beyond.