Thursday, July 30, 2015

Re D: Relieving the child from the maelstrom of his parents' destructive relationship

Lady Justice King
A brief note upon Re D (A Child) [2015] EWCA Civ 829, a father's appeal against an order refusing him contact with his six year old son ('OD').

The facts: The parents lived together between January 2007 and April 2009, separating when OD was only a few weeks old. His parents' animosity towards each other has meant that he has been at the centre of litigation since February 2010, culminating in  an order made by His Honour Judge Yelton on the 23 October 2014 whereby the judge dismissed the father's application for a child arrangements order and specifically an order for contact. The father appealed against this order.

The decision: Lady Justice King gave the leading judgment of the Court of Appeal, where neither party was represented. Essentially, the father had two grounds of appeal:
"...first that the court should not prevent contact "because the parents do not get on"; and secondly that this is a case of what the father calls "PAS" (which must be taken to be a reference to so called parental alienation syndrome). His case is that the mother must not be allowed to prevent contact by dint of having alienating OD from his father."
The father effectively asked the court to adopt the contents of the judgment of Christopher Clarke LJ, who had given the father permission to appeal, believing that contact was stopped by the judge "because of the negative influence of the mother's views on the child". However, as Lady Justice King pointed out, that belief was erroneous, as the father had failed to file documents which did not support his case, in particular reports of the Cafcass officer, who had found that OD's clear wish not to see his father had not been the result of coaching by the mother:
"The judgment [of Christopher Clarke LJ] is a paradigm example of the difficulties in which a judge is placed when a litigant in person, either through lack of understanding of the process as a whole, or a misplaced belief that it is acceptable only to file documents which they believe will support their case, fails to put before the appeal court relevant material, and in particular the reports of experts upon which the judge at first instance relied or was influenced."
As to the grounds of the appeal, Lady Justice King did find that it would have been preferable for HH Yelton to have set out his reasons in more detail, but "such an analysis would only have served to reinforce the conclusion he reached rather than undermining the order made". However, as to parental alienation the judge made a finding which accorded with that of the Cafcass officer, namely that the mother had not 'coached' OD although he had "picked up" on the mother's anxiety and negative perception of the father.

The real issue, in Lady Justice King's judgment, was whether the judge, as submitted by the father, refused contact "because the parent's couldn't get on". She said:
"It is undoubtedly the case that the inability of parents to behave in a civilised and co-operative manner towards each other for the sake of their children is not in itself a reason to refuse contact to an absent parent. Equally however there are cases, (fortunately for the children concerned, relatively few and far between), where the level of animosity between the parents and their consequent behaviour, either one towards the other, or to each other, is such that it has had a serious and deleterious effect on the child at the centre of the dispute. In the most extreme cases the harm caused to the child by the behaviour of their parents is such that the intervention of the local authority becomes necessary; in other cases a judge, with the child's welfare as his or her paramount consideration, may, no matter how reluctantly, feel obligated to call a halt to contact for a period of time in order to relieve the child from the maelstrom of his parent's destructive relationship.

The judge, having had the benefit of [the Cafcass officer's] reports and having seen for himself in court the continuing acrimony between the parents, reluctantly concluded that this was one such case and that contact cannot at the moment work for OD "largely because their relationship between the parents is so obviously acrimonious and so clearly permeates all their dealings with each other." His decision was made, not because the parents could not get on with each other, but because of the effect their war of attrition was having on their son."
The judge had made findings consistent with the evidence, and had provided sufficient explanation, supported by the evidence, that at the present time, OD's welfare demanded that there be no contact. Accordingly, the appeal was dismissed.

Lady Justice King added the following postscript to her judgment, which was endorsed by Lord Justice Elias:
"Inevitably in the 9 months it has taken for this appeal to come on, the parents have been able to focus only on the continuing litigation and as a consequence have been unable to reflect on their own individual responsibility for the situation in which OD now finds himself. OD has a further 11 years of childhood and there is still time for bridges to be built, I, for my part, hope that now that the litigation is over, the parents may take time to reflect and perhaps, in due course, have the determination and courage to find a way for OD to have a relationship with both sides of his family and in particular his father."
Such judicial exhortations for parental 'reasonableness' seem to be becoming a regular feature of judgments in private law children cases - one can only hope that they are heeded.

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