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We often write about difficulties with arrangements for children after divorce and separation. In terms of legal solutions, these cases are some of the most difficult to deal with: children grow and change constantly, requiring flexibility in their arrangements that distressed parents with differing views find difficult to accommodate. This week, we saw what seems to be the final instalment of a case involving a long-running dispute between the parents of two girls now aged 14 and 10.

The case is one that tends to catch the media’s attention due to the fact that the girls’ parents are each in civil partnerships with someone else of the same gender. On one side of the dispute we have two fathers, and on the other side, two mothers, with whom the children live. Nevertheless the facts of the case otherwise are sadly not unusual in the context of the most difficult cases that come before the family court. The relationship between the parents has broken down to such a significant extent that the children have repeatedly refused to see the parent with whom they do not live – their father, in this case, and his partner – and the intervention of the court and social services has not been successful.

There were three previous hearings, and on each occasion the court did its best to bring about contact between the children and their fathers. Each time, frustrated, the fathers have brought the case back to court and the mothers have then asked the court instead to make orders which would limit the amount of involvement the fathers had in the girls’ lives. As almost always, both sides truly believe that they act in the best interests of the children.

The current situation is that the children do not spend time with their fathers, and have not seen them for years – two years in the case of the younger one, and much longer for the older. The fathers send the girls cards, letters and gifts, and the girls send the fathers newsletters – this is called ‘indirect contact’. This time, the fathers were initially asking the court for a suspended residence order which would take effect if the mothers didn’t stick to the contact order, plus other enforcement or variation of the contact order; an extension of the supervision order on the mothers for a further 12 months; and the replacement of the County Council or appointment of an independent social worker to oversee its work, with which they had been disappointed. However, at the door of the court, the dads changed their minds. They dropped their main applications to spend time with the children and largely accepted the way things were, leaving only a couple of points for the court to determine.

In his decision on the case, Mr Justice Cobb summarised the fathers’ reasons for their decision:

“The fathers no longer pursue any application for direct contact, but seek orders for indirect contact only; they described this as “the biggest decision of their lives”… the fathers wished to emphasise that it was never their intention “to take anything away from” the mothers; they had wanted to “add, enhance and enrich” the children’s lives, and still do. Their pursuit of contact, and of a meaningful relationship with the girls, stemmed from their love for the girls and a wish to be a part of the girls’ lives; they had no wish to undermine the mothers…

The fathers expressed the concern, which I readily understand and acknowledge, that the children should not believe that by not pursuing direct contact now the fathers have abandoned them; they do not want the children in years to come to blame them for not doing all they could to try and achieve the relationship which they (and I add the Court) consider to be in the best interests of the girls. They informed me that they want [the children] to know that they “respect their wishes and feelings”. …

They wish to emphasise that they love the children, they always will, they will always be there for them, and interested in them. They hope that the children will one day look back at the happy times of contacts enjoyed in the past.”

The court’s response to the fathers’ last-minute change of position was to reinforce its consistent view that the mothers’ attitude in resisting the fathers’ involvement with the girls was depriving them of relationships of real value, and to express disappointment that the family court has not been able to achieve what its judges have considered best for the girls. The judge signed off the order ‘somewhat unenthusiastically’ bearing in mind the lack of direct contact provision within it, while acknowledging the clear benefits of bringing the litigation to a close. The girls will receive letters, cards and gifts as now at defined points in the year, and will send letters to their fathers. The fathers will receive school reports but will otherwise have no contact with the girls’ schools. There is a prohibition on going back to court again for another two years.

This dreadfully sad story raises the real question of what is in children’s best interests when litigation about contact with a parent has blighted a childhood. Is continued litigation or the lack of a relationship with a parent more harmful in the long term? How do you persuade, cajole and convert children and parents to re-evaluate their belief systems and give the most hated figures in their lives – for reasons real or imaginary, or both – a second chance, if the court thinks that’s the right thing? At what point does the balance tip to leaving things as they are? As the judge said in this case,

“The Family Court cannot work miracles; it has had to work in this case with highly intelligent people with “disordered” relationships and “distorted” thinking … Court orders are blunt tools which are devised to regulate parties’ actions, but they cannot change personalities, and cannot change the way people function as people… making contact happen, and making contact work, is one of the most difficult and contentious challenges in the whole of family law.”

We wish these parents and children all the best as they adjust to life without litigation and hope the path is a smoother one from here. If you have any questions on how the courts deal with difficult contact cases, or if you’d like to talk to us about any aspect of family law, do call 01223 443333 to make an appointment with Gail, Sue, Adam, Tricia or Simon.