We all know how hard it is to get children to do things when they don’t want to. From the furious baby who turns into a rigid, purple, screaming monster when you try gently to coax him into a pushchair, to the toddler who throws a tantrum (usually in a public place) when you require her to do something innocuous like eat a carrot or put a shoe on. Then of course there are the teenage years, when putting them on the naughty step or denying them an episode of Peppa Pig just doesn’t have the same effect.
So, what happens when children exert their will, and everything in their armoury, to avoid having contact with a parent, or complying with an order of the court to live with a particular parent? These sorts of difficult cases, and cases where one parent is implacably opposed to contact with the other, are sometimes called “intractable contact” disputes.
In cases where the court finds that there is wilful non-compliance by a parent with a court order relating to arrangements for children, the court has power to make further orders in an attempt to encourage compliance. You can see our explanation of these here.
But when it is the children who appear to be the source of the non-compliance, particularly older children and teenagers, the situation can be more complex. In a recent case the Court of Appeal has looked at just this sort of problem.
Very briefly, the background to the case was as follows. The two girls are now teenagers. The parents were together for 10 years. Following their parents’ separation, the girls lived with the mother and had contact with the father. From 2005 until June 2008, they stayed with the father on alternate weekends. In June 2008, there was an incident in which the father’s new wife grabbed and pushed the elder girl, then aged 9, causing some superficial bruising. The father is said to have failed adequately to intervene, and minimised the seriousness of the incident subsequently in an interview with the police.
From this point onwards the family situation spiralled inexorably downwards. The father failed to apologise and behaved inappropriately. There had been years of litigation, with the girls refusing to see their father or his family despite the best efforts of the court, therapists, experts and CAFCASS. The father has not seen the girls since the incident in 2008, and the girls had made allegations of abuse against the father which were found to be entirely without foundation, yet they persisted (aided and abetted by their mother) in their opposition to contact. The judgment makes somewhat painful reading: it is clear that courts have blamed both parents for intransigence and insensitivity. The father appealed to the court of Appeal against the refusal of the judge in the Family Court to order face to face (direct) contact between him and the girls.
The judges of the Court of Appeal, which included the President made it abundantly clear that the blame for this mess lay at the feet of the parents. The judge who had dealt with the case described it as “one of the most abject failures of parental responsibility by two otherwise intelligent parents that I can remember in 34 years as a family lawyer. In my opinion the mess that these parents have made of their shared responsibility for their children is a disgrace. I predict that it will only be in later life that the manifestations of what these parents have done to their children will become apparent as the children struggle to function as adults following the skewed childhood that their parents have both chosen to give them”.
All three judges in the Court of Appeal made it clear that it was incumbent upon parents as part of their responsibilities to their children to ensure they have a relationship with the other parent. It is worth quoting a few paragraphs verbatim from the judgement.
The President said that it is not “acceptable for a parent to shirk their responsibility by sheltering behind the assertion that the child will not do, or even that the child is adamantly opposed to doing, something – and this, I emphasise, is so whatever the age of the child.”
Furthermore: “There are many things which they ought to do that children may not want to do or even refuse to do: going to the dentist, going to visit some ‘boring’ elderly relative, going to school, doing homework or sitting an examination, the list is endless. The parent’s job, exercising all their parental skills, techniques and stratagems – which may include use of both the carrot and the stick and, in the case of the older child, reason and argument –, is to get the child to do what it does not want to do. That the child’s refusal cannot as such be a justification for parental failure is clear: after all, children whose education or health is prejudiced by parental shortcomings may be taken away from their parents and put into public care”.
The President then said that courts expect parents “by argument, persuasion, cajolement, blandishments, inducements, sanctions …. or threats falling short of brute force, or by a combination of them, does their level best to ensure compliance. That is what one would expect of a parent whose rebellious teenage child is foolishly refusing to do GCSEs or A-Levels or ‘dropping out’ into a life of drug-fuelled crime. Why should we expect any less of a parent whose rebellious teenage child is refusing to see her father?”
So, harsh words, and perhaps we can expect to see more enforcement orders handed down when parents fail to secure the compliance of their children with court orders. However in this case, the appeal was dismissed as the Court of Appeal recognised that the judge who did not order direct contact was not wrong, given the damaged state of the girls after years of parental hostility, litigation, and psychological damage.
The President’s final words to the parents were these:
“The overall picture is clear. Both parents share the responsibility, putting it plainly, both parents share the blame. Initially, the preponderant blame probably attached to the father. More recently, the preponderant blame attaches to the mother. Overall, the mother is at least as much to blame as the father, on balance probably rather more. Be that as it may, it is quite obvious as matters stand today, when the reality is that neither J nor K has any meaningful relationship with their father, that it is only the mother who is in any position to move matters on.
“What, then, of the way forward? What is needed of the mother? What do her children need of her? What, indeed, is her parental duty to her children? I suggest the following:
i) Recognition, and at least internal acknowledgement, that, in common with the father, she has failed her children.
ii) Recognition, and at least internal acknowledgement, that the children have already suffered significant harm and, unless something is done, are likely to continue to suffer significant harm for the remainder of their childhood and into adulthood.
iii) Recognition that everything must be done to restore her children’s relationship with their father.
iv) Recognition that, at least initially, the entire responsibility for trying to achieve that rests with her.
“I urge the parents, the mother in particular, to think very carefully about everything we have said, not only in these judgments but also during the hearing of the appeal, when each of them was present in court. Unless they can, as they must, even at this late stage, sort things out and restore the father’s relationship with J and K, the future for all of them is bleak. There will be no winners here; all will be losers.
“J and K have an image of their father which, however it has come about, is distorted and profoundly damaging to them. But it is unrealistic for anyone, the mother included, to imagine that this state of affairs will continue indefinitely. Sooner or later, and it may be much sooner than the mother believes or would wish, the children will come to discover the full story of their parents’ failures. Sooner or later, and it may be much sooner than the mother believes or would wish, the children will demand to see the court papers and to read the judgments. What will they think? How will they react? In particular, what will the children think, how will they react, when they discover, as one day they will, that their father is not the man they currently believe him to be? Will they then turn against their mother? Will they reject both parents? The mother needs to ponder these questions and think hard about what the answers might be.
“It is simply too dreadful to imagine a future where both parents are estranged from their daughters, where they are cut off from their grandchildren, and where they are left with nothing but regrets and remorse. It is, as I said to them in court, the kind of outcome which haunts me in cases like this. It is a future which does not bear thinking about. It is not yet too late; perhaps this appeal can be the catalyst for change.”
If we can help with children’s arrangements, or any aspect of family law, please give Adam, Tricia, Simon, Gail or Sue a ring on 01223 443333.