Wednesday, December 16, 2009

Re R: A warning to mothers

I think that the case of Re R (A Child), reported today on Bailii (and previously in the press), deserves some comment. It concerns an eleven year-old boy (R) who has lived with his mother all of his life. His father applied for a residence order in favour of himself and his wife, alleging that the mother had prevented R from having proper contact with him, and that the mother had alienated R from him. These allegations were denied, but the application was granted, despite the fact that R had consistently told the Guardian that he did not wish to see his father, and wanted contact to stop.

The case was heard by His Honour Judge Bond in the Bournemouth District Registry. He said that the court was "being asked to make a momentous decision". He went on:
"To remove a child from his mother in any circumstances is a very serious step. R has lived with his mother all his life. The effect of a decision to change residence upon the mother will be severe. R will be aware of that. I pause to ask myself if the proposed course of action is really in R's overall welfare."
Having so paused, he nevertheless decided that it was. This decision was subsequently upheld by Lord Justice Wall in the Court of Appeal, a ruling that the Telegraph called "a warning to other mothers who do not acknowledge a father’s rights", Lord Justice Wall having described Judge Bond's ruling as a "sensible, careful, well thought out and balanced judgment".

A decision that will give some comfort to fathers' rights groups? I doubt it, but we shall see...

4 comments:

  1. Not really John, and for at least three reasons.

    The first is illustrated by the Telegraph's comment; what you call the fathers' rights groups rarely use that designation themselves. The priority should be the child's rights, and the danger in careless reporting of cases like these is that it gives encouragement to those who oppose fathers' rights at the expense of children's. When courts act like this it looks as if they are putting the father's rights before the child's. Equal parenting campaigners - which is how we prefer to see ouselves - have never favoured sole residence plus contact, regardless of which parent it is awarded to.

    Secondly, cases like these are very rare; it is as if the courts do it to keep the 'fathers' rights groups' happy, and to show that they can, but they don't do it nearly often enough for it to send the right messages. A couple of years ago (Re C (Residence Order) [2007] EWCA Civ 866,) Lord Justice Ward transfered residence and tried to use it as a warning to implacably hostile mothers ('let it be shouted from the rooftops'). But there have been very few such cases since. There is an argument that transfer of residence is the only logical response in contested contact cases, and should happen much earlier, in the hope that the new resident parent will promote contact with the other (if a child has the misfortune to have TWO parents opposed to contact, God help him).

    Thirdly, and most importantly, as Wall said, the effect of this 'nuclear option' (preferable only to committal) on the child would be 'catastrophic', though obviously less catastrophic than the alternative of permanent loss of a parent. Later reports showed that the effect hadn't been particularly catastrophic and the child was adjusting well. Nevertheless, these cases should never reach this point, and in my view illustrate powerfully the general inability of the courts to deal with implacable hostility effectively and early on in a case. What would give comfort to fathers' groups would be the end of cases like this, and a system which recognised children's rights to have two parents at the start of proceedings, not after years of fruitless litigation. We want to see mandatory mediation at the start of cases, parenting classes for parents who deny their child's right to have two, and an end to ritualistic litigation.

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  2. :-) I knew you wouldn't be satisfied!

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  3. Does it satisfy you, John?

    Is there any cause here for satisfaction?

    I suppose some people might agree with the Telegraph that it sends a warning to mothers, but sending such a warning once or twice a year isn't getting the message through.

    How long was this particular mother indulged by the courts to disregard her child's need for a father?

    How many thousands of bad mothers - and not a few fathers - are similarly routinely tolerated provided they keep paying the fees?

    The message I get from this isn't that the courts have any particular concern for the rights of children, but that just once in a blue moon they come over all cranky when their orders are consistently ignored.

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  4. Well said Nick

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