Wednesday, October 03, 2012

M (Children): Use of a conditional residence order where contact obstructed

Mr Justice Peter Jackson
A discussion of M (Children) [2012] EWHC 1948 (Fam), which involved the making of a conditional residence order in favour of the father, in circumstances where the mother had been obstructing contact.

The case concerned the father's application for residence in respect of two boys, aged 10 and 8. The mother also had two younger children, by different fathers.

The parents had separated in January 2007. In May 2010 the father applied for contact (at that stage he was having contact every Sunday), and an order for reasonable contact was made, together with a direction for a s.7 report from CAFCASS.

In July 2010, the father expanded his application to seek a residence order. Some contact took place up to August 2010, when it was stopped by the mother, who said that the children did not want to go. There was then no contact between August 2010 and April 2011, when supervised contact took place, but the boys refused subsequent contact.

In August 2011 the mother, without warning anyone, took the children from the Blackpool area, where the family had been living, to Devon. The mother then refused to disclose her new address to her solicitors and failed to attend hearings, until committal proceedings were issued.

Three occasions of staying contact were then ordered, and took place, between October 2011 and January 2012. A Guardian's report on progress was ordered, and a further hearing fixed for February 2012.

The Guardian reported that the children were extremely negative about contact, and recommended that she would be concerned about the children having frequent direct contact. However, Mr Justice Peter Jackson, hearing the case, found that the Guardian's approach was "profoundly flawed", and therefore departed from the Guardian's recommendation and made a final contact order providing for contact in Blackpool at holidays and half terms.

The children refused to go on the first ordered contact visit, and the father issued enforcement proceedings.

A new Guardian was appointed and on 11th April the children were taken to a contact centre for handover with the Guardian being present. The children were "hateful and insulting" to their father, and after about four hours attempts to persuade them were abandoned.

The new Guardian filed a report recommending that the contact order remain in effect and be enforced.

In May 2012 further contact was ordered, but did not take place, the children refusing to get in the father's car. The father then made a formal application for residence.

The hearing took place on the 5th July. Mr Justice Jackson did not accept the mother's contention that she had done everything she could to comply with the contact orders, and found (at paragraph 58) that:
"Her real attitude is that the children do not need these relationships at all."
As to the children's wishes and feelings, he was:
"...convinced that these children love their father and want to be able to see him, but that they are being prevented from showing those feelings or acting on them [paragraph 61]."
He then weighed up the factors for and against a transfer of residence, at paragraphs 65 to 71, concluding that "it is more likely to succeed than to fail".

Taking everything into account, he considered (at paragraph 76) that the father's application for a residence order should succeed, but decided to allow the mother one final opportunity. He therefore directed that the order would not come into effect if staying contact was resumed (as defined). This 'conditional residence order' was limited to the period of the next eight weeks, as he felt that such an order was only appropriate "where the court can confidently foresee the circumstances in which it might come into effect". Thereafter, and until the end of next year, the order will not automatically come into effect if there are failed contacts, but if there are, the father can restore his application before Mr Justice Jackson "for an early decision".


  1. Interesting post. Says a lot:

    1) Mom is always default resident parent according to the law.
    2) Dad is relatively dispensable, up to the point where mom does one too many things to cross the judge.
    3) Dad becomes a parent worth considering once mom breaks the law one too many times.
    4) But even after breaking the law, mom is given yet another chance.

    Crazy world! No wonder we see the same insolence toward the law over and again.

    1. If only a judge's task were so simple.

  2. Then again there's that case you have just drawn attention to, John, reported in Family Law, in which the only reason given for terminating father's direct contact with a five year old was mother's anxiety about him spending time with his father. Decisions like this, which appear on the face of it to allow undue leeway to a mother's irrational hostility to or fear of a father will do nothing at all to assuage the ire of the pressure groups. There is something inherently offensive in the doctrine that a transfer of residence to a loving father should be a last resort solution.

    1. Perhaps we need to get the message across that it is all about the welfare of the children, not the parents.

  3. That's precisely the problem John, and I think you know it too.

    The term child welfare is one that lends itself to the strangest and most hypocritical abuses.

    In the case that James cites, which is an all-too-common solution for Britain's plague of lazy judges, child welfare is looked at solely from the point of view of an irrationally anxious mother and not from the point of view of a dad that wants to reassure the child that they are not 'absent' (to use the industry's favorite accusatory and blame-shifting expression).

    This is the infamous 'distress argument', responsible for destroying thousands of father-child relationships.

    You don't need to look far or read too much to understand that child welfare is a crock of cow's testicles, used over and again to purge dads (who are of course always violent, abusive, controlling, etc. that need to be purged - because, let's face it, all men are natural born monsters.

    1. Thank you for your rather warped view. Oh, and please do not presume what I know.

  4. "Perhaps we need to get the message across that it is all about the welfare of the children, not the parents."

    The fact that this needs to be said after 21 years should also be highly embarrassing for legislators and the judiciary alike.

    Can you propose some solutions as to how we might get this message across 21 years after the fact?

    1. Perhaps the problem is that too many people don't want to understand the welfare principle.

  5. There is nothing in legislation that makes the mother the default resident parent. That arises from norms in society, not a presumption in law.
    I do agree that the anxieties of the mother preventing the child having a relationship with the father in that case is disgraceful, though.

    1. Thanks, NL. I was going to make your first point myself, but I'm losing the will to live.


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