About the Family Law Week blog

The Family Law Week Blog is a companion site to Family Law Week. It complements the news, cases and articles published on Family Law Week with additional comment and coverage of the wider aspects of family law.

The Blog is edited by Jacqui Gilliatt, of 4 Brick Court and Lucy Reed, of St Johns Chambers.

Tuesday, 9 November 2010

Once more without conviction

The case of Re L-W [2010] EWCA Civ 1253 is getting a lot of blogging attention (Family Lore, Researching Reform).

This was an intractable hostility type case with an unusual gender role reversal in that the 10 year old child lived with his father and was refusing to have contact with his mother.

The court (Munby LJ in the lead) states in the case:

Nothing in this judgment should be seen as a charter for avoiding enforcement of contact orders in whatever is the most appropriate way, including, where appropriate, by means of committal.

However, anyone trying to persuade a court to use committal as an enforcement tool in intractable hostility cases involving children who express firm views that they do not want to have contact will now have an uphill struggle.

In the case the usual contact order terms: allow the parent to have contact and make the child available for contact were used. The court has emphasised that this is not the same as being ordered to achieve contact or make it happen and that it will not be contempt unless contact an be made to happen and is not made to happen. If something prevents the contact from happening eg a volcanic ash cloud then the question of breach never arises and the parent who does not achieve contact does not get to the point of arguing reasonable excuse because force majeure stops the contempt charge in its tracks. Reasonable excuse only comes into when contact could be made to happen but does not, for example because the childe is ill.

The father's obligations under each successive order were to "allow" contact and "make M available" for contact. To "allow" is to concede or to permit; to "make available" is to put at one's disposal or within one's reach. That was the father's obligation; no more and no less. But that is not how Judge Caddick treated the orders. Running through all his judgments is the assumption, indeed the repeated assertion (see the passages I have set out in paragraphs [26], [51], [60], [66] and [67] above), that the father's obligation was to "make sure" or "ensure" that M went and that contact took place. The father's obligation, according to Judge Caddick (see the passage set out in paragraph [60] above), was to "make sure that he did all that was necessary so that that child would go" and to take "whatever other steps within the exercise of his parental responsibility were necessary to make sure that he went". The father may have been under a parental or moral obligation to do these things, but on the wording of these orders he was not, in my judgment, under any legal obligation such as to render him in breach of the orders for failing to do them, let alone for failing to achieve – to "ensure" – that contact actually took place. Nor, with all respect to Mr Walden-Smith, was the father under a legally enforceable obligation to take such steps in the exercise of his parental discipline, guidance and encouragement as were reasonable in all the circumstances to ensure that contact took place.

The court did not strike out all the findings of breach of the contact orders made by the Judge but in considering the question of sanction for those breaches emphasised the obvious drawbacks of imposing a custodial sentence on a parent and the thoughts of Dame Elizabeth Butler-Sloss P in Re S (Contact: Promoting Relationship with Absent Parent) [2004] EWCA Civ 18, [2004] 1 FLR 1279, at para [28]:

the sanction of prison for mothers who refuse to allow contact is a heavy one and may well be a self-defeating one. It will hardly endear the father to the child who is already reluctant to see him to be told that the father is responsible for the mother going to prison. Prison is a sanction of last resort and there is little else the court can do. At this stage also the court may have the evidence that the continuing efforts to persuade the mother to agree to contact are having a disproportionately adverse effect upon the child whose welfare is paramount and the court may be find it necessary, however reluctantly, to stop trying to promote contact. That is a very sad situation but may be necessary for a short or for a longer time if the welfare of the child requires it. One aspect of proportionality which has to be weighed in the balance is the length to which a court should go to force contact on an unwilling child and on the apprehensive primary carer. At this point the factor of proportionality becomes all-important since there is a limit beyond which the court should not strive to promote contact and the court has the overriding obligation to put the welfare of the child at the forefront and above the rights of either parent.

On the facts of the case the court considered that it was probably too late for a prison sentence to have any real likelihood of achieving contact.

Here are Lord Justice Sedley's concluding remarks:

There are at least two morals. One is that before deciding that a parent is the author of a child's resistance to contact and so can be made the subject of a coercive order, the court needs also to be sure that the parent, by one acceptable means or another, can still reverse the child's attitude. The other is that even then a court, despite the affront to its dignity, may have to be prepared, if it comes to the point of committal, to accept that the predictive premise on which it initially acted has turned out to be wrong: that, for example, the child has internalised the custodial parent's hostility, so that punishing the parent can no longer produce the intended outcome and may produce its opposite.

This last point brings me to something which I venture to say less as a judge than as a parent. The critical attitude which M has acquired or developed towards his mother is not one of simple hostility. He wants her to be the mother he remembers when he was little. There is a real pathos about this in a boy, still only ten or eleven years old, who has had and is still having to live through an acrimonious family rift and realignment. If instead of seeking to restore relations with his mother by letting her see him for a few hours at a time the courts were to abandon the blunt instrument of coercion and were to let time take its course, it seems to me much more likely that M will in his own time find his own way back to the affectionate relationship with his mother which both of them wish for. It may not happen, of course; but if we continue down the present road it will certainly not happen. The law does its best in the absence of other means, and modern legislation has done what it can to make the law's own means practical and fair; but the law is not omnicompetent, perhaps most of all when, equipped only with its received or inherent powers, it is called on to intervene in the subtle and unpredictable business of child care and human relations.

The case is, however, to remain in the court of first instance to deal with the mother's application for a residence order. I would put money on it being back in the Court of Appeal before long.

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