An analysis of the Court of Appeal decision in RE W (CHILDREN) (2012)

[2012] EWCA Civ 999 

I have written about intractable and long-running contact disputes before on this blog, and no doubt I will again. 

(The fact that the Court of Appeal have begun to use Sky Sports slang like “a big ask” makes me hopeful for a judgment in the future saying that “The Big fella Stephen Cobb, he’s gone up for that submission on the law, risen like a salmon and it’s just not come off for him. He’ll be disappointed with that”   “True, but he’s a top, top, top, top lawyer Martin”  – or indeed   “If you offered him joint residence now, would he take it?” )

The Court of Appeal grappled with yet another intractable contact dispute case  recently in Re W. 

This set of private law proceedings were dogged by what seemed to be misfounded non-molestation orders against the father  (none of the allegations bar one very mild one being borne out), allegations of a grievous kind against the grandfather (which were not finally pursued by mother )  and of course, failure to comply with interlocutory contact orders.

To cut to the tl; dr  bit (as I know you private law family types have busy lives and those schedules about picking up Child A at 4.30pm from the McDonalds in Chiswick High Street on a Tuesday don’t write themselves)

The Court of Appeal seem to be stepping quite deliberately down a path of it being the responsibility of parents (both of them) to try to resolve a contact dispute without this level of hostility, and that there is something which looks like a duty and sounds like a duty, when holding Parental Responsibility to ensure that the rights of the other parent are respected.

And this passage is the nub of it :-

78. Parents, both those who have primary care and those who seek to spend time with their child, have a responsibility to do their best to meet their child’s needs in relation to the provision of contact, just as they do in every other regard. It is not, at face value, acceptable for a parent to shirk that responsibility and simply to say ‘no’ to reasonable strategies designed to improve the situation in this regard.

 The awful drift in the case was highlighted here, by Lord Justice MacFarlane

16. Pausing there, it is necessary to note that almost four years had elapsed between F’s initial application for contact in May 2008 and the first substantive hearing in January 2012. Between those dates important decisions had been made by no less than five judges prior to the trial judge. It is to be particularly noted that the one judge who had heard the parties give evidence at the fact finding hearing ceased to hold the case soon after that hearing. F had not seen his children for nearly three years, since April 2009. The papers display a significant element of drift, not least the ten months that expired between the decision to instruct an expert and the filing of her report.

Let me draw further attention to that, because it is astonishing.  Almost four years elapsed between father applying for contact and getting a substantive hearing about it.

A child psychologist was instructed and recommended that the child undertake some desensitisation work about contact (which sounds like something from “The Manchurian Candidate” to me, but is no doubt a delightful and charming process involving no brainwashing at all)

 The Judge at first instance made the following points in judgment, before eventually deciding against any orders for direct contact :-

28. In setting out her findings and conclusions the judge made the following key points:

a) Each of the two parents love their children, are committed to them and are motivated by a desire to do what they consider to be in the children’s best interests.

b) The difficulties arise as a result of the relationship between the adults, rather than that between the adults and their children.

c) It is in the best interests of these children that they are able to have a meaningful relationship with both of their parents.

d) Dr G’s analysis of the reason for A’s stated refusal to see F is accepted.

The children’s behaviours are now well entrenched and significant work will need to be done with the children to reassure them they can have a relationship with F.

e) Dr G’s opinion that M has experienced trauma as a result of the relationship with F, and has continued to be traumatised by the court process, is accepted. There is a clear pattern of M acting in what Dr G describes as an “adversive reaction” at every stage when contact is ordered or attempted.

f) F has made “considerable progress” in therapy and demonstrates “profound change”. F, however, has a need to undertake a deeper level of work aimed at achieving empathy and understanding for the impact of his behaviour upon M.

g) F would be able to manage contact with the children appropriately, if it were possible to arrange this.

h) Dr G’s concerns about the use of the paternal aunt, HW, as a means to re-introduce F are accepted.

(Note that all of the concerns about Father related to the impact of his involvement in the child’s life on mother, rather than any direct evidence that he had harmed, or would harm,  the child)

The decision not to allow contact was contrary to the recommendations of the child’s Guardian, appointed through NYAS.

The Court of Appeal helpfully analyse the appropriate legal tests for making an order that refuses contact in private law proceedings to a birth parent, which this cynical and jaded hack thought might be something of a swipe at those in Parliament who think that the Courts don’t already operate on a presumption that spending time with two parents is best for a child where possible.

39. The second principle, that it is almost always in the interests of the child to have contact with the parent with whom the child is not living, has been approached by judges, both before and since the decision in Re O, as requiring the presence of “cogent reasons” for departing from that general principle. A classic statement of the need for cogent reasons appears, for example, in the short judgment of Waite LJ, from which Sir Thomas Bingham MR expressly quoted, in the case of Re D (A Minor)(Contact: Mother’s Hostility) [1993] 2 FLR 1. Waite LJ said “the judge properly directed himself by asking whether there were any cogent reasons why this child should, exceptionally, be denied the opportunity of access to his natural father.

And here

42. In Re C (A Child) (Suspension of Contact) [2011] EWCA Civ 521, [2011] 2 FLR 912 Munby LJ summarised the relevant ECHR case law as follows:

“a) Contact between parent and child is a fundamental element of family life and is almost always in the interests of the child.

b) Contact between parent and child 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 if it will be detrimental to the child’s welfare.

c) There is a positive obligation on the State, and therefore on the judge, to take measures to maintain and to reconstitute the relationship between parent and child, in short, to maintain or restore contact. The judge has a positive duty to attempt to promote contact. The judge must grapple with all the available alternatives before abandoning hope of achieving some contact. He must be careful not to come to a premature decision, for contact is to be stopped only as a last resort and only once it has become clear that the child will not benefit from continuing the attempt.

d) The court should take a medium-term and long-term view and not accord excessive weight to what appear likely to be short-term or transient problems.

e) The key question, which requires ‘stricter scrutiny’, is whether the judge has taken all necessary steps to facilitate contact as can reasonably be demanded in the circumstances of the particular case.

f) All that said, at the end of the day the welfare of the child is paramount; the child’s interest must have precedence over any other consideration.”

43. Finally I would refer to the pithy, but nonetheless correct, distillation of this approach in the judgment of Ward LJ in Re P (Children) [2008] EWCA Civ 1431, [2009] 1 FLR 1056 at paragraph 38 where it was said that “contact should not be stopped unless it is the last resort for the judge” and (paragraph 36) until “the judge has grappled with all the alternatives that were open to him”.

 (feel free to cut and paste any of that for private law submissions)

The Court of Appeal considered that the decision of the trial judge to refuse contact to the father was plainly wrong and should be overturned.

Most of this judgment is very case specific, and not terribly surprising. But it is the judicial comments about the RESPONSIBILITY element of  Parental Responsibility, which begin below, which make the case interesting and potentially significant.  (Underlining is mine)

45. Although the welfare principle in CA 1989 s 1(1) is, as I have said, the sole statutory directive to the court determining questions relating to a child’s upbringing, it is not the only statutory provision which bears upon the responsibility for determining and putting into action arrangements to be made for a child’s care within his or her own family. The Children Act 1989 does not place the primary responsibility of bringing up children upon judges, magistrates, CAFCASS officers or courts; the responsibility is placed upon the child’s parents. In the previous sentence I have deliberately used the plural of parent as it is now very frequently the case that the law provides that parental responsibility for each child will be shared by both parents.

46. In a judgment relating to the court’s determination of issues of contact, it is not common to refer to the meaning of “parental responsibility” set out in CA 1989, s 3(1). In my view, there is benefit to be gained from stepping back from a focus upon the court’s role and seeing the function of the court in the wider statutory setting within which the primary responsibility for determining the welfare of a child, and then delivering what that child needs, is placed upon both of his parents and, importantly, is shared by them.

47. In CA 1989, s 3(1) “parental responsibility” is defined as meaning “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”. When there is a dispute as to the arrangements for a child’s care, much emphasis may be put by parents upon the one word “rights” within that all-encompassing definition. Such a narrow focus has no justification when one looks at the plain words of this clearly drafted and important section of the Children Act. The phrase under consideration is not “parental rights” but “parental responsibility”. Along with the “rights….powers…and authority” enjoyed by a parent come the “duties” and “responsibilities” which a parent has in relation to a child. The detailed rights and duties of a parent are not defined more precisely in the Act, but, in general terms, it must be the case that where two parents share parental responsibility, it will be the duty of one parent to ensure that the rights of the other parent are respected, and vice versa, for the benefit of the child.

48. These observations, which are founded upon CA 1989, s 3 and relate to the duties that attach to those who have parental responsibility, do not directly impact upon the decision that falls to be made in this appeal which turns upon the cogency of the material relied upon by the judge in deciding to refuse direct contact. I will however return to the topic of parental responsibility, and its importance in cases of this type, in a short ‘post-script’ at the conclusion of this judgment.

This seems to be implying, or importing, effectively a duty  or quasi-duty on parents to act responsibly towards one another for the benefit of the child.

Post-script

72. Having determined the issues in this appeal, I return briefly to the concept of parental responsibility and the potential for it to be given greater prominence in the resolution of private law disputes as to the arrangements for the welfare of children.

73. The observations that I now make are part of a wider context in which the family

courts seek to encourage parents to see the bigger picture in terms of the harmful impact upon their children of sustained disputes over the contact which is most neatly encapsulated in the words of Black LJ in T v T [2010] EWCA Civ 1366:

“[The parents] must put aside their differences … if the adults do not manage to resolve things by communicating with each other, the children inevitably suffer and the adults may also pay the price when the children are old enough to be aware

of what has been going on. … It is a tremendous privilege to be involved in bringing up a child. Childhood is over all too quickly and, whilst I appreciate that both sides think that they are motivated only by concern for the children, it is still very sad to see it being allowed to slip away whilst energy is devoted to adult wrangles and to litigation. What is particularly unfair is that the legacy of a childhood tainted in that way is likely to remain with the children into their own adult lives.”

74. In describing the statutory legal context within which decisions as to the private law arrangements for a child are to be made, I have stressed that it is the parents, rather than the court or more generally the state, who are the primary decision makers and actors for determining and delivering the upbringing that the welfare of their child requires. I have stressed that, along with the rights, powers and authority of a parent, come duties and responsibilities which must be discharged in a manner which respects similarly held rights, powers, duties and responsibilities of the other parent where parental responsibility is shared.

75. In all aspects of life, whilst some duties and responsibilities may be a pleasure to discharge, others may well be unwelcome and a burden. Whilst parenting in many respects brings joy, even in families where life is comparatively harmonious, the responsibility of being a parent can be tough. Where parents separate the burden for each and every member of the family group can be, and probably will be, heavy. It is not easy, indeed it is tough, to be a single parent with the care of a child. Equally, it is tough to be the parent of a child for whom you no longer have the day to day care and with whom you no longer enjoy the ordinary stuff of everyday life because you only spend limited time with your child. Where all contact between a parent and a child is prevented, the burden on that parent will be of the highest order. Equally, for the parent who has the primary care of a child, to send that child off to spend time with the other parent may, in some cases, be itself a significant burden; it may, to use modern parlance, be “a very big ask”. Where, however, it is plainly in the best interests of a child to spend time with the other parent then, tough or not, part of the responsibility of the parent with care must be the duty and responsibility to deliver what the child needs, hard though that may be.

76. Where parental responsibility is shared by a child’s parents, the statute is plain (CA 1989, s 3) that each of those parents, and both of them, share ‘duties’ and ‘responsibilities’ in relation to the child, as well as ‘rights … powers … and authority’. Where all are agreed, as in the present case, that it is in the best interests of a child to have a meaningful relationship with both parents, the courts are entitled to look to each parent to use their best endeavours to deliver what their child needs, hard or burdensome or downright tough that may be. The statute places the primary responsibility for delivering a good outcome for a child upon each of his or her parents, rather than upon the courts or some other agency.

77. Where there are significant difficulties in the way of establishing safe and beneficial contact, the parents share the primary responsibility of addressing those difficulties so that, in time, and maybe with outside help, the child can benefit from being in a full relationship with each parent. In the present case the emotional and psychological make up of the two parents, both separately and in combination, prevented easy contact taking place. Dr G advised that both parents needed to access support or therapy to enable them to approach matters in a different way. F engaged in the necessary work, but M declined to. It may have been in F’s interests to do so, and M may have taken a contrary view; be that as it may, the only interests that either parent should have had in mind were those of each of their two children.

78. Parents, both those who have primary care and those who seek to spend time with their child, have a responsibility to do their best to meet their child’s needs in relation to the provision of contact, just as they do in every other regard. It is not, at face value, acceptable for a parent to shirk that responsibility and simply to say ‘no’ to reasonable strategies designed to improve the situation in this regard.

79. The observations that I have made will be, I suspect, very familiar thoughts to family judges, lawyers, mediators and others. My intention in setting them out in this judgment is to give them a degree of prominence so that they may be brought to the attention of parents who have separated at an early stage in the discussion of the arrangements for their child.

80. Whether or not a parent has parental responsibility is not simply a matter that achieves the ticking of a box on a form. It is a significant matter of status as between parent and child and, just as important, as between each of the parents. By stressing the ‘responsibility’ which is so clearly given prominence in CA 1989, s 3 and the likely circumstance that that responsibility is shared with the other parent, it is to be hoped that some parents may be encouraged more readily to engage with the difficulties that undoubtedly arise when contemplating post-separation contact than may have hitherto been the case.

This would seem to be an important and persuasive authority to be used in implacable hostile cases, or where one parent is appearing to unreasonably block attempts to resolve contact.  

It isn’t terribly plain what the Court is supposed to do when one parent is not complying with this ‘duty’ or responsibility; which is the million dollar question, but it is interesting (to me at least) that there seems to be a judicial authority for the point that there is something akin to the LA’s “duty to promote contact”  for parents.

– Incidentally, because I am a pedant, and suddenly realised that we all know that the LA HAS a duty to promote contact, but couldn’t lay my mental finger on where,  I had to go and find it, so here it is:-

The Fostering Services (England) Regulations 2011, reg 14

Duty to promote contact

This section has no associated Explanatory Memorandum

1. 14.           The fostering service provider must, subject to the provisions of the care plan and any court order relating to contact, promote contact between a child placed with a foster parent and the child’s parents, relatives and friends unless such contact is not reasonably practicable or consistent with the child’s welfare.