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As specialist family lawyers and mediators, we at CFLP hear a lot of stories. We hear tales of inspiring kindness and heartbreaking meanness, good deeds done and wounds inflicted. We see people who are sorry for things they’ve done, and people who are not. However, despite guiding and assisting thousands of clients through divorce, we’ve never heard of a court requiring someone to apologise before they are allowed to see their children.

That’s effectively what a court did in a recent case that has just come to light. Re K (Children) was a father’s appeal against an initial decision that he should have no contact with his children, aged 6 and 5, after they were exposed to frightening behaviour and violence by him on their mother.

The original court found that the father had been abusive and controlling to the mother. However, the Guardian (who represented the children’s interests at the hearing) was clear that the violence was not of a level that would exclude all chance of the father re-establishing direct contact with the children. The father had apologised, by a card, to the children for his behaviour. The court heard that he had not actually apologised to the mother, and the Guardian felt that this indicated a failure of self-awareness and acceptance that he had been at fault. The judge agreed and declined to make an order that the father and children should see each other.

The Court of Appeal granted the father’s appeal on the basis that the judge had not exhausted all reasonable avenues for getting contact re-started before deciding that it should not happen. The case was sent back to the original court for directions for it to be reheard. At the same time, the Court criticised both the original judge and the children’s Guardian for becoming distracted by the father’s failure to apologise to the mother. Lord Justice Vos said this:

“the recorder seems to have taken the view that the father’s failure to make a genuine and heartfelt apology to the mother precluded him from seeing his children. I cannot accept such a starting point. It may well be that a repentant father would offer a reduced risk of harm to the children, but it is that risk and the welfare of the children generally that are important in contact cases, not any moral judgment of either parent. As has been often pointed out, parents are of all kinds and demonstrate all levels of moral virtue. It is not the court’s job to judge a wrongdoing parent for the sake of doing so, because it will, in all but the most exceptional circumstances, be in the children’s best interests to see their parents. If the failure to apologise posed a risk to the children, that might have been a different matter, but that does not seem to have been the case here. The recorder was wrong to impose a pre-condition of repentance and apology. Those matters were relevant, but only insofar as they had a bearing on the welfare of the children.”

As regular readers will know, the fundamental consideration when deciding arrangements for children is what will best serve the interests of those individual children. Unless there is a reason why direct contact between a parent and child can not be safe, or there is evidence that contact will be detrimental to the welfare of the child, the law is clear that should be contact between parent and child. What the judge here did wrong, was to assume that the lack of apology from father to mother meant either that contact could not be safe, or that it would be detrimental to the children’s welfare. The Court of Appeal made it clear that this was a moral judgement, not a valid legal one.

We find this judgment particularly interesting because it shines a light into the complexities of human relationships that the court simply can’t investigate when it decides matters for separated families, whether they are children, financial, property matters, or other things. Apologies are such powerful things – the word ‘sorry’, or the willful failure to say it, can turn a ship. Withholding an apology can be an exercise of power, and some might say a continuation of abuse. Offering an apology can be a genuine gesture of remorse, or a tactic to get what you want.

Would it have been better in the case above for the father to say sorry, but not mean it? If the mother had rejected an apology from the father, in the eyes of the court would that have shown strength and self-worth, or churlishness and spitefulness? What would the court have done then?

It’s clear that the court can only take apologies into account so far as they directly pertain to the welfare of the children in question. Words are only words, and actions are what count when you are trying to establish the safety and suitability of child contact, particularly when there has been a history of violence or abuse. If you have any questions about what you have read above, or indeed any other aspect of family law, please call us on 01223 443333 and make an appointment to see Gail, Sue, Simon, Adam or Tricia.

 

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