Tuesday, July 24, 2012

Re W (Children): The responsibilities of parents

The case of Re W (Children) [2012] EWCA Civ 999, decided today, involved a father's successful appeal against the dismissal of his application for direct contact with his daughters. However, it is the postscript to the judgment of Lord Justice McFarlane (right) to which I wish to refer here. I had intended to summarise what he says, but I think I can do no better than quote the postscript in full:
"Having determined the issues in this appeal, I return briefly to the concept of parental responsibility and the potential for it to be given greater prominence in the resolution of private law disputes as to the arrangements for the welfare of children.

The observations that I now make are part of a wider context in which the family courts seek to encourage parents to see the bigger picture in terms of the harmful impact upon their children of sustained disputes over the contact which is most neatly encapsulated in the words of Black LJ in T v T [2010] EWCA Civ 1366:
"[The parents] must put aside their differences ... if the adults do not manage to resolve things by communicating with each other, the children inevitably suffer and the adults may also pay the price when the children are old enough to be aware of what has been going on. ... It is a tremendous privilege to be involved in bringing up a child. Childhood is over all too quickly and, whilst I appreciate that both sides think that they are motivated only by concern for the children, it is still very sad to see it being allowed to slip away whilst energy is devoted to adult wrangles and to litigation. What is particularly unfair is that the legacy of a childhood tainted in that way is likely to remain with the children into their own adult lives."
In describing the statutory legal context within which decisions as to the private law arrangements for a child are to be made, I have stressed that it is the parents, rather than the court or more generally the state, who are the primary decision makers and actors for determining and delivering the upbringing that the welfare of their child requires. I have stressed that, along with the rights, powers and authority of a parent, come duties and responsibilities which must be discharged in a manner which respects similarly held rights, powers, duties and responsibilities of the other parent where parental responsibility is shared.

In all aspects of life, whilst some duties and responsibilities may be a pleasure to discharge, others may well be unwelcome and a burden. Whilst parenting in many respects brings joy, even in families where life is comparatively harmonious, the responsibility of being a parent can be tough. Where parents separate the burden for each and every member of the family group can be, and probably will be, heavy. It is not easy, indeed it is tough, to be a single parent with the care of a child. Equally, it is tough to be the parent of a child for whom you no longer have the day to day care and with whom you no longer enjoy the ordinary stuff of everyday life because you only spend limited time with your child. Where all contact between a parent and a child is prevented, the burden on that parent will be of the highest order. Equally, for the parent who has the primary care of a child, to send that child off to spend time with the other parent may, in some cases, be itself a significant burden; it may, to use modern parlance, be "a very big ask". Where, however, it is plainly in the best interests of a child to spend time with the other parent then, tough or not, part of the responsibility of the parent with care must be the duty and responsibility to deliver what the child needs, hard though that may be.

Where parental responsibility is shared by a child's parents, the statute is plain (CA 1989, s 3) that each of those parents, and both of them, share 'duties' and 'responsibilities' in relation to the child, as well as 'rights … powers … and authority'. Where all are agreed, as in the present case, that it is in the best interests of a child to have a meaningful relationship with both parents, the courts are entitled to look to each parent to use their best endeavours to deliver what their child needs, hard or burdensome or downright tough that may be. The statute places the primary responsibility for delivering a good outcome for a child upon each of his or her parents, rather than upon the courts or some other agency.

Where there are significant difficulties in the way of establishing safe and beneficial contact, the parents share the primary responsibility of addressing those difficulties so that, in time, and maybe with outside help, the child can benefit from being in a full relationship with each parent. In the present case the emotional and psychological make up of the two parents, both separately and in combination, prevented easy contact taking place. [The child psychologist] advised that both parents needed to access support or therapy to enable them to approach matters in a different way. F engaged in the necessary work, but M declined to. It may have been in F's interests to do so, and M may have taken a contrary view; be that as it may, the only interests that either parent should have had in mind were those of each of their two children.

Parents, both those who have primary care and those who seek to spend time with their child, have a responsibility to do their best to meet their child's needs in relation to the provision of contact, just as they do in every other regard. It is not, at face value, acceptable for a parent to shirk that responsibility and simply to say 'no' to reasonable strategies designed to improve the situation in this regard.

The observations that I have made will be, I suspect, very familiar thoughts to family judges, lawyers, mediators and others. My intention in setting them out in this judgment is to give them a degree of prominence so that they may be brought to the attention of parents who have separated at an early stage in the discussion of the arrangements for their child.

Whether or not a parent has parental responsibility is not simply a matter that achieves the ticking of a box on a form. It is a significant matter of status as between parent and child and, just as important, as between each of the parents. By stressing the 'responsibility' which is so clearly given prominence in CA 1989, s 3 and the likely circumstance that that responsibility is shared with the other parent, it is to be hoped that some parents may be encouraged more readily to engage with the difficulties that undoubtedly arise when contemplating post-separation contact than may have hitherto been the case."
I would suggest that the above should be compulsory reading for all parents involved in disputes over the arrangements for their children.

14 comments:

  1. Breathtaking in its simplicity and directness....unequivocal in its focus.....and should be helpful in most private law cases....perhaps it should form part of the Separated Parents Information Programme material that all parents should get on application to the family courts

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  2. Northern Lights25 July 2012 at 11:45

    With all due respect, I think we are ignoring the elephant in the room. Have a look at, amongst others, paras 16 and 17 of the judgement.
    This case is a litany of prevarication, vacillation and utter impotence on the part of the lower court in the face of a parent (in this case the mother) who is obstructive, manipulative and downright mendacious.
    That is what is missing from LJ McFarlane's words of wisdom on a theme often repeated by family court judges. Warring parents are largely immune to pleas that they behave reasonably and it then falls upon the court to make orders and ensure that they are complied with.
    The lower court has singularly failed to do so in this case. This case, like countless others,should have been nipped in the bud at an early stage and the lower court must shoulder the blame for failing to do so.

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    1. Whilst the case obviously should not have been allowed to 'drift' as it did, I don't think that that invalidates LJ McFarlane's words in any way. Ultimately, the responsibility lies with the parent, not the court.

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  3. And some clever and deliberately obstructive parents realise that the court arena is just another forum to use in their pursuit of something else other than what is in their childs best interests.....and they misuse that forum....damaging in a more profound way than that caused by the family justice systems built in imperfections which rightly give rise for concern.....and have been much openly debated recently....damaging to actual children due to the deliberate acts of their parents.....in my book you can't get a more serious indictment than that....as a parent.....and that is exactly why a great many of these people are already in the family courts....because they've either chosen to be there or have been driven to it by the circumstances they have found themselves in.

    Where is the notion that as fully mature adults we should take responsibility for our own actions......not call in the clean up crew when that deliberately fails or is undermined by the behaviour of one or both parents.....because the clock is ticking and damage is or has already been potentially accruing in the child or children caught up as collateral damage.

    It should not be forgotten that as a general principle every court order in a private law case should be viewed as a failure of collaborative parenting to find a solution to a parenting issue.....it has obviously gone beyond their resources as responsible parents....we need to look a lot more....about the circumstances of that initial failing...and it seems to me Lord Justice McFarlane....rightly points up the importance and emotional potency for children...and for the parents as well....as a direct result of those failings which existed before the intervention of the family courts.

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    1. Yes. No one is saying that the family justice system is perfect, but the original cause of these disputes is the failure of one or both parents to behave in a responsible fashion.

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  4. Oh and rather than spend a great deal of money on diagnostic experts....why not divert some of those funds to therapeutic experts because it seems clear to me that no matter what a judge orders....it's not going to happen in some cases without skilled help.....where are those resources....

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  5. Perhaps the original cause of these disputes is the failure by Government to promote shared parenting by law.

    My own opinion is that it should be 50/50 shared parenting as the default. Parents would then have to decide themselves how best to parent their children. Only then would the responsibility for parenting their children be back in the hands of the parents and not in the hands of the judiciary.

    The failure of one or both parents to behave in a responsible fashion is perpetuated by lack of enforcement by the Courts when contact orders are broken by one or other of the parents.

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    1. Thanks for that. I agree that if the court fails to enforce its orders, then that can obviously perpetuate the failure of the parents to behave in a responsible fashion.

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  6. "whilst I appreciate that both sides think that they are motivated only by concern for the children, it is still very sad to see it being allowed to slip away whilst energy is devoted to adult wrangles and to litigation."

    This is nonsense, and the judge knows it, but he/she says this in order to appear unbiased. If he or she has been sitting for more than a few months, he or she will know that, beyond 'concern', this is ultimately about one party's control. That party is almost always mom.

    This is not really mom's fault though. For too long, women have been shoved into child-rearing duties and shut out of public life. Women have been told that they are useless and not full women if they are not in total control of their children. Woman have also been encouraged to be parasites through the child maintenance system, so as to keep them 'in their place'.

    Family law is probably that domain of contemporary life that is most full saturated with sexism and patriarchal attitudes.

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  7. "It should not be forgotten that as a general principle every court order in a private law case should be viewed as a failure of collaborative parenting to find a solution to a parenting issue..."

    Umm, possibly in some cases, but in most cases that have gone on for years with one parent doing everything in their power to alienate (after false allegations failed to do the trick), the need for yet another court order is due to the failure of the court to step in and step up to the plate, disabuse itself of its preconceptions of the weaker sex, give mom a custodial sentence, and award the dad with full residency.

    It's too easy to blame both parents, and I'm getting a little bored of the shifting of the blame here. The problem is one parent, and the court's inefficacy in dealing with that parent.

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