Unreasonable behaviour, unreasonable judges or unreasonable law? - Actually, the first of those is a misnomer – as we explored in an earlier post the law on divorce in England & Wales requires behaviour (maybe unreasonable...
4 hours ago
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.
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 , , ,  and  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  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 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.
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 long awaited legal planning meeting eventually took place on 25 July. The lawyer was relatively inexperienced in advising in care proceedings and it became clear that the SW and her TM were reluctant to consider care proceedings; they did not see the necessity for them. The conviction demonstrated at the child protection conference on the 8 June had dissipated. Despite the long delay the lawyer was without the medical report of the injuries on X XXX. The background information was incomplete. On that basis the lawyer did not think they could advise on whether the threshold was met at that time. In any event, even if the threshold had been met, it was the TM’s decision whether to initiate them or not. The threshold was met. The original injuries to child A met the threshold for care proceedings and that carried through alongside any subsequent injuries. Legal services accept completely that the service in this case was inefficient and did not meet the standard required, and they have made improvements to prevent a recurrence. They also accept that they have an independent safeguarding responsibility to any child, and that if they disagree with the decision of a TM then they have a duty to make representation to managers responsible for them.
3.22.6 It can be an unfortunate feature of the understandings in the work that whether the parent is prosecuted or not can become conflated with the degree of risk to the child, and whether care proceedings should be initiated. They are different considerations with different thresholds for action. However they can be become unhelpfully misunderstood around the injuries to the child and the medical opinion. The police are concerned with evidence and place importance on the indications of injuries and the weight which doctors will give to them. Other services can also place importance on the medical opinion of the injuries, too much importance, and they wait for the outcome of the police and CPS’ view of them. If they are not to lead to a prosecution the cause of the injuries can become regarded as uncertain and even accidental. The police accept that it took an unacceptably long time to resolve the position on the original injuries to child A.
3.22.7 The delay was due to a combination of administrative failure, a change of jobs, collecting evidence at the time, and the very long time it took to obtain a second medical opinion. That opinion was that the injuries were probably non-accidental but the CPS judged that it was not strong enough for a successful prosecution.
Obviously all cases will be different, but an application to oppose should involve an exercise of assessing to some extent the prospects of success of the opposition. But it should be viewed more perhaps -- and this is the issue the court will have to decide -- in terms of whether this is an utterly hopeless case, or whether this is a case which is at least arguable in the sense that, even if there is not a better than even chance of success, there is some realistic prospect of success in much the same way as we decide whether to grant permission or not.
Here the parties live in a committed and exclusive relationship recognised by our family law and spend significant time as a unit of four. The background to the case and the shared care arrangement is entirely consistent with the concept of a family of four. In my judgment, the parties in this case bring themselves within the ambit of Section 144 (b) and thus Section 50 of the 2002 Act. They are thus entitled to make a joint application to adopt C.