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This week, our attention was caught by a story in the Mail that reported some family court proceedings between two estranged parents about a 12-year old girl. The headline news, as reported, was that the Court of Appeal has apparently upheld an order of the family court that a father should not be permitted to exchange texts with his daughter in between the times he sees her. Although the actual court judgment is not yet publicly available, we thought we’d have a look at some of the points raised both by the apparent decision, and the reporting of it.

Court of Appeal hearings are public, although anybody reporting proceedings has to adhere to restrictions regarding anything that could identify the children involved. There is a push towards greater transparency in the workings of the family court that has included guidance to the lower courts encouraging the publication of more judgments, so that the public can be better informed about the work the courts do in protecting children and dispensing family justice. This doesn’t mean that all judgments are published – they aren’t, and occasionally one comes along, like this one, where the papers get in first because a reporter has been present in court when judgment was delivered. In these cases it’s difficult to know precisely what has happened.

The paper reports that the father in this case sees his daughter twice a month, and wished to be in contact with her by text message in between those times. It reports that the judge who heard his application decided not to permit this, so the father appealed to the Court of Appeal. It also reports that the Court of Appeal did not allow the father’s appeal against the initial decision.

In understanding what might have happened here, it’s important to know that there is not an automatic right of appeal if a court decision goes against you (this is true in every area of law, not just family cases). In order to get an appeal off the ground, a prospective appellant has to show clearly that the judge made a mistake of law or of fact in his or her judgment, or – in exceptional cases – that there has been a mistake or misrepresentation, or circumstances have changed to such a degree since the initial judgment as to render that judgment unworkable or to give it an unintended effect. It’s not enough just to be unhappy with the result or to think the judge was wrong. It can be very difficult successfully to appeal a family law judgment, as these cases turn on their individual facts and unique evidence, and the trial judge is the one who witnesses and assesses everything relevant during the hearing so is best placed to make the decision.

So why would a judge, after hearing all the evidence, decide that a father should not be permitted to exchange texts with his twelve year old daughter between times when he sees her? The report speculates – but the only real answer is that the judge will have considered that to permit it would not be in the child’s best interests. The first section of the Children Act 1989 states that:

“ (1)When a court determines any question with respect to—

   (a)the upbringing of a child; or

(b) the administration of a child’s property or the application of any income arising from it,

the child’s welfare shall be the court’s paramount consideration.”

The child’s welfare is the fundamental guiding principle by which our judges make decisions about children. We have written before about what it means. In deciding what promotes the child’s welfare and what doesn’t, the court has to have particular regard to these factors:

“(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

(b) his physical, emotional and educational needs;

(c) the likely effect on him of any change in his circumstances;

(d) his age, sex, background and any characteristics of his which the court considers relevant;

(e) any harm which he has suffered or is at risk of suffering;

(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(g) the range of powers available to the court under this Act in the proceedings in question.”

The news report of this case mentions that the daughter herself told the court she wanted to be able to exchange text messages with her father. As we can see, however, according to the law, the wishes and feelings of the child are only one factor in the court’s consideration of her welfare. It seems right to assume that in this case there will have been other factors raised in the hearing by her mother, who opposed the father’s application and appeal, that pointed to the child’s welfare potentially being compromised if text exchanges were allowed. Even mature children do not always understand the complexities of a situation, and may not be in the best position to work out what is in their best interests although they may strongly want things to be a certain way. The mother’s reservations seem to have been accepted by the judge.

We know very little about this case from the media report, but it reads like a very difficult situation and we do feel for the people involved. It is always extremely unfortunate when a difference in approach between parents leads to court proceedings, because parental conflict can be highly damaging to children. Sometimes court proceedings are inevitable, but it is always worth seeking resolution of differences by mediation, negotiation or collaboration at an early stage of a potential dispute before making an application to court, to see if it is possible to make progress in a less combative manner. If you have any questions about what you’ve read here, or any other family law matter, you can call us on 01223 443333 and make an appointment to see Gail, Simon, Adam, Sue or Tricia.

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