In a move which could see parents being told to turn to counselling or therapy to deal with their attitude – whether it’s based on anger or anxiety – the Court of Appeal has said that the responsibility for achieving the best outcome for a child following separation or divorce lies with the parents themselves, not with the courts or any other agency of the state, however tough it may seem.
Said Steven Payne, family lawyer with solicitors Gepp & Sons: “The short message is that contact will only be denied as a last resort. Parents cannot shirk their responsibilities towards their children and expect the courts to back them up by denying contact to the other parent.”
The ruling has come following a long court battle in the case of W (Children). The mother and father had lived together for six years, buying a house together and having two children, but the stormy relationship ended when the father had difficulty in controlling his temper, often shouting verbal abuse at the mother.
The mother left the family home in 2008, taking the children with her, and although the father had contact with the children to start with, arrangements soon broke down and despite a court order in place for weekly direct contact, the mother refused him access.
A psychologist then recommended that the father undergo therapy to develop his emotional awareness and to help manage his anger. He did this and made good progress, but the mother said she was too traumatised and found it impossible to cooperate over contact.
When the case first came to trial the judge agreed that the mother’s distress and anxiety was so strong and deep-rooted that it was impossible for her to cooperate with contact arrangements, and so the judge ordered that there should be no direct contact between the father and the children.
But when the father took his case to the Court of Appeal, the judges agreed with him.
In his judgment Lord Justice McFarlane said that the courts must look to two principles in deciding contact disputes. Firstly, that the welfare of the child is paramount and the court is only concerned with the interests of the parents in so far as they bear on the welfare of the child. Secondly, that it is almost always in the interests of a child to have contact with the parent with whom they are not living. On this basis, the judges said, contact should only be denied as a last resort and after the judge has grappled with all the possible alternatives.
The first trial had identified the mother’s refusal to undergo therapy as being the sole barrier to contact with the father and by accepting the mother’s position on this, the inevitable consequence was to deny contact with the father. This was wrong, according to the Court of Appeal, because the judge had failed to grapple with the alternatives, and had denied contact to the father when she should have focussed on getting the mother to undergo therapy to help her cooperate with contact arrangements.
Steven Payne added: “This is an important case because it sends out a warning to parents. Lord Justice McFarlane says that the courts will almost always regard it as being in a child’s best interests to have a meaningful relationship with both parents. The clear message is that parents must set aside their differences and work out ways to achieve this. If there are obstacles they must find a way to overcome them – whether that’s simply backing down, or through therapy, counselling or mediation to help them do so.”
This is not legal advice; it is intended to provide information of general interest about current legal issues.
