Tuesday, November 09, 2010

Re L-W (Children): The law is not omnicompetent

The case of Re L-W (Children) EWCA Civ 1253, decided last week, perhaps demonstrated the limits of the courts powers when dealing with an intractable contact dispute.

The facts: The father and the mother have two children: M, a boy, born in 1999, and E, a girl, born in 2001. M lives with his father, E with her mother. A contact order dated 13 May 2009 provided for the mother to have contact with M, and further contact orders were thereafter made. The mother issued three applications for enforcement orders and orders for compensation for financial loss. The judge made a compensation order pursuant to section 11O Children act 1989 on 15 December 2009, an enforcement order pursuant to section 11J on 8 January 2010, a further enforcement order dated 27 January 2010, a further compensation order also dated 27 January 2010 and a further compensation order dated 24 June 2010. He also found the father guilty of contempt for six breaches of contact orders, and sentenced him to 28 days imprisonment concurrent, suspended for 12 months on condition that he obeyed the contact orders. The father appealed against all of these orders, essentially on the basis that M was entrenched in his opposition to contact, and the father could not force him to have contact.

Held: The appeals were allowed and the orders were set aside. Lord Justice Munby gave a long and detailed judgment (which certainly merits reading), but Lord Justice Sedley's brief supporting judgment perhaps summarised the case best. He said (at paragraph 119) that the judge had legitimately formed the view that the father was obstructing contact by transmitting to the child his hostility towards the mother. However, "by the time committal was on the agenda it was very plainly the boy's own refusal which was impeding contact". Accordingly (paragraph 120): "The premise on which the judge made his initial order has become absorbed into a much more complex and intractable situation which punishing the father not only cannot solve but will exacerbate."

He went on (at paragraph 121):

"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."

He concluded (at paragraph 122):

"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."

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