6 cases that shape a private children dispute18 Jan 2022 | Lisa Pepper
Family disputes involving children can be particularly emotive, which is why our expert children lawyers work tirelessly to understand how Judges will likely determine a case. It means we can advise you robustly, but with honesty and sensitivity, on how we should present your case and achieve the best outcome for your child.
Whether your concern relates to a child’s living arrangements; the extent of one parent’s control, child adoption, or relocation – the child’s welfare is the most important consideration. Our expertise is derived from extensive experience in complex children cases and regular analysis of court rulings.
The last decade has seen many important rulings, with 6 standout children cases that have predominantly shaped Judges’ modern approach to the issues.
Below is a summary of each case and why these decisions may affect your case.
Re H: Parental Alienation
Parental alienation – where a child’s resistance or hostility towards a parent is unjustified – is increasingly recognised by the courts. Even the most subtle form of parental alienation can have a devastating impact on a child.
Parental alienation is typically prompted by deliberate or inadvertent psychological manipulation by the other parent. It can cause the child emotional confusion, anger and anxiety; and result in a reluctance to spend time with the ‘alienated’ parent.
In the 2019 case of Re H (Parental Alienation), the mother had unsuccessfully alleged domestic violence against the father. After separating, regular contact was maintained between the father and the child. Direct contact stopped in March 2018 but the two exchanged text and WhatsApp messages after a few weeks.
However, by May of that year, the child had dramatically changed his view about his father and it transpired that the mother had shared with the child an inappropriate email she had received from the father. The child was 12 at the time of the hearing.
The High Court accepted the evidence from an expert in parental alienation, who had assessed both parents and the child himself. The expert concluded that the child was prioritising his mother’s needs over his own. His responses in an interview were “extreme and excessive” and were said to be typical of an alienated child. They were more likely to be alienation than estrangement resulting from the father’s behaviour.
As for the mother, The Court considered her views were entrenched, she lied in her evidence and displayed passive aggression when giving evidence. Despite indicating a willingness to support co-parenting, she did not resist any opportunity to blame the father for the breakdown in contact.
The court ordered a change of residence so that the child would now live with his father. Contact with the mother should not resume until at least three months had passed.
Re H-N: Coercive Control
In recent years, we have seen major developments in relation to understanding domestic abuse and the application of the law. Children cases regarding where the child should live and contact with the other parent, often involve an alleged pattern of abusive behaviour as opposed to actual physical violence. This has prompted greater judicial recognition of the need to focus on patterns of behaviour when determining a case.
In the recent case of Re H-N, the appeal court heard four appeals involving alleged domestic abuse – particularly controlling and coercive behaviour and the impact on the children. The court gave important guidance on whether the focus should be on patterns of behaviour rather than specific incidents, where a child’s welfare is affected.
Indeed, the court acknowledged that the key question in many cases must be whether the evidence shows an abusive pattern of coercive and/or controlling behaviour. This will, however, lengthen the judicial process, and additional delay could prejudice the child’s welfare.
The court set out the correct approach, taking into account an important practice direction (PD12J). This right approach includes considering the nature of allegations and the extent of its relevance to whether a child arrangements order should be made (and if so in what terms).
The Judge will also be required to consider carefully whether it is ‘necessary’ and proportionate to have a fact-finding hearing. This will depend on the evidence and, importantly, the relevance to the issue before the court if the allegations are proved.
K v K: International relocation
This case dates back to 2011, but it remains good law today for relocation cases abroad and emphasises the principle that the welfare of the child is paramount.
The mother was Canadian and the father was Polish. After separation and divorce, they shared the parenting of their two daughters. In February 2011, the court allowed the mother’s application to relocate with the children to Canada. The father appealed, pointing to his commitment to the girls and the significant nature of the shared care arrangements.
The Court of Appeal allowed the father’s appeal. The Court highlighted the significance of the practical arrangements for sharing the burden of care between two equally committed carers. Where each is providing a more or less equal proportion and one seeks to relocate externally, the correct approach is for the Judge to apply the statutory checklist in section 1(3) of the Children Act 1989. Under s1(3), the child’s welfare is the court’s paramount consideration.
Notably, the CAFCASS report recommended that the mother’s application be refused, on the basis that relocation to Canada now was not in the children’s best interests. The appeal Judges said the trial Judge had not given this report the weight it deserved. The father’s emotional relationship with the children, and their right to enjoy family life together, should have been given appropriate weight.
This was a finely balanced case and it is clear the Cafcass report was a key factor for the court in allowing the appeal.
Re C: Internal Location
Should the court’s approach to applications to relocate children within England and Wales differ to international relocations? No, said the Judge in a significant ruling from 2015 that states that relocation within the UK can create just as much, if not more, of a geographical and logistical barrier between child and parent as relocation abroad.
Here, the court gave given the mother permission to move with her daughter, aged 10, from London to Cumbria. Though the child lived with the mother, she was spending alternate weekends and two weekday nights with her father. The CAFCASS report recommended against the move, even though the child herself wanted to move to Cumbria.
The father failed in his appeal. He argued that the Judge had wrongly relied on an earlier authority and had treated the mother as the primary carer. The court made clear, once again, that the child’s welfare remains of paramount importance. Also, there was no requirement of ‘exceptionality’ (where the proposed move would be stopped only if there were exceptional circumstances) in internal relocation cases.
How the core principle of the child’s welfare is practically applied will depend on the particular facts of the case. This requires a holistic balancing exercise, taking into account all the relevant factors – which vary significantly from case to case. The objective is to determine which of the available options best satisfies the requirement to afford paramount consideration to the welfare of the child.
Re L-W : Breach of Contact Orders
When a court order is made during children proceedings, it must be complied with – or risk a prison sentence for persistent breaches.
A 2010 ruling remains an important abject lesson in the need to determine precisely the limits of what an order requires, before an application for enforcement or committal is made or granted.
There were two children of the family, aged 11 and 9 years. The elder child (M) lived with the father and the other with the mother. A difficult and “intractable” dispute arose around contact, with M refusing contact with the mother. There was also evidence of parental alienation and a number of failures to comply with orders for contact.
This led to the mother applying for enforcement and compensation orders for wasted petrol costs. The Judge allowed her applications. He also made a committal order for the father’s breaches, sentencing him to 28 days in prison, suspended for 12 months on condition he obeyed previous contact orders.
However, the Court of Appeal overturned the orders because of fundamental errors on the Judge’s part. First, he had overstated what the contact orders actually required. The orders required the father to make M available for contact, but the Judge had interpreted the order as if the father was under a legal obligation to ensure M went for contact with the mother.
Second, the Judge was wrong to reject the father’s defence that performance was impossible. To prove there had been a breach, it had to be demonstrated that he had not done what he was required to do; and that it was within his power to do it.
Here, the breaches were established only in three out of five incidents. What, then, was to be done about the committal order? On the facts, the committal order was set aside.
However, the court emphasised the principle that committal is “an essential weapon in the court’s armoury” in this type of case. Nothing in its judgment should be taken “as a charter for avoiding enforcement of contact orders”.
G (Children: Intractable Dispute) : Parental Involvement
Children cases can be complex and long-running. This 2019 case, which focused on the extent of a parent’s involvement in his children’s lives, is a case in point.
Under section 1 of the Children Act 1989, the involvement of a parent in the child’s life will further the child’s welfare, unless the contrary is shown. And once again, the court emphasised that the child’s welfare is paramount.
The parents separated in May 2013 when their daughters were just 5 and 2 years old. Since then, litigation concerning the children had been continuous.
Sadly, over the years the court had found the father had completely lost sight of the girls’ welfare. The court order that led to this final appeal was for very limited indirect contact between him and the children.
It had also made clear he should follow the recommendations of the expert psychologist who had assessed the family. She said he should seek therapeutic intervention with a view to then re-establishing his relationship with the children.
The Court of Appeal refused the father’s appeal. It found that he had little, if any, insight into his own difficulties. The Judge had been right on the evidence to make a finding that the father had completely lost sight of the welfare of the children. They would be harmed emotionally if placed with him or required to have direct contact with him against their wishes.
The court emphasised: “The presumption of parental involvement is very strong, but it is not absolute. As in all matters relating to the upbringing of a child, welfare prevails.”
How we can help?
Osbornes Law has a team of expert children lawyers in London who can discuss your particular circumstances and will explain the full range of options for you and child, as well as divorce and separation where required.
While these cases only relate to English law, we deal with both UK and international cases. If you are overseas or outside London, we have video conferencing facilities and a full online service to ensure you are kept up to date and fully appraised of your case and legal options.
Lisa Pepper is a partner in the family department specialising in children, divorce and finance matters. She is also an accredited mediator. She is ranked as a leading lawyer in Chambers UK, Chambers HNW, The Legal 500, Spears HNW directory and Tatler Advisory.
Share this article
Lisa Pepper Partner
"Lisa Pepper is good at making herself available to clients and has a real focus on finding pragmatic solutions."
"Lisa Pepper is a complete all rounder. Her mediation skills are second to none. She is kind and compassionate and knows the law inside out!."
"Lisa Pepper is ‘compassionate, supportive and committed to hear clients, with a very warm manner."
"Lisa Pepper is fantastic. She goes the extra mile for her clients and is a superb mediator."
"Osbornes has a hugely experienced mediation team with Andrew Watson, Bridget Thompson and Lisa Pepper who are able to offer financial and children mediation for a range of cases including those that are highly complex involving challenging clients."
"Lisa Pepper is fantastic with people and generates calm in her meetings to help clients give of their best."
I can’t think of anyone who would handle a mediation better than Lisa.
Lisa Pepper is extremely hard-working and adored by her clients. She is a very empathetic and approachable lawyer.
"She has a good way of talking to clients in an empathetic way and is also a highly recommended mediator."
"One of the most amiable, friendly and talented lawyers in London... she has impressed me as someone who fights my corner but also understands the importance of resolving issues without unnecessary escalation. She is calm and reassuring."
Lisa Pepper – very down to earth and approachable.
"Lisa Pepper was recommended to me as non-nonsense and able to help me with a difficult and confrontational divorce. She more than lived up to that – she was practical, collected and always available with a clear opinion and suggestions of how to move forwards. She also was open and helpful about costs and how to mitigate them"
"Lisa Pepper is an outstanding mediator. She is very skilled and has an empathetic and professional approach which is comforting for clients. She never imposes her own view but is even handed and provides helpful guidance to clients so that they can make empowered decisions"
"Lisa Pepper has built up a very impressive mediation practice. She is very engaging and easy to relate to. She embodies mediation in the sense that she approaches her case in a very non-judgmental fashion and can quickly gain the confidence of those with whom she is mediating"
"Lisa Pepper is a brilliant mediator who produces results. She is effective at resolving matters without the need for the parties to engage in expensive and protracted litigation"
"Lisa Pepper is a fantastic mediator. She is fair, robust when she needs to be, and finds a way of facilitating agreements in the hardest of cases. Her guidance is spot on. She has an approachable and constructive mediation style"
"She has impressed me as someone who fights my corner but also understands the importance of resolving issues without unnecessary escalation. She is calm and reassuring."
"Her mediation practice is exceptional; she is also a great solicitor and has a breadth of skill which is really useful."
Lisa Pepper is extremely approachable and this shines through in the outcomes she achieves from mediation. She makes clients feel at ease, which enables them to feel empowered to resolve matters amicably and find a creative outcome which many mediators may have overlooked.
Lisa Pepper is building a very strong mediation practice at very competitive rates and is able to build a rapport quickly with almost anyone.
Lisa Pepper loves her work and has a very sensible head on her. That means her practice is thriving and rightly so.
Lisa Pepper is very thorough in her preparation and has super personal skills to put parties in mediation at ease
Lisa Pepper – good litigator, very friendly and approachable but tough, “straight bat” with the opposition. Can steer a client deftly to settle when he should.
Lisa Pepper gave me clear, level-headed and sensible advice during her handling of my divorce, and she demonstrated excellent understanding of the relevant law. She was on my side but fair and pragmatic, and her advice was always given with an eye to what was both equitable and achievable, and in line with the collaborative approach I’d wanted.
Lisa Pepper is particularly recognised for her role as a mediator in complex cross-border disputes. Her practice also includes handling prenuptial agreements and issues arising from the dissolution of civil partnerships.
"Lisa Pepper is "caring and considerate of the issues behind a matter, and will speak directly if she feels clients need that advice."
"The very personable and client-focused Lisa Pepper."
"Lisa Pepper somehow manages to get parties to settle on matters where there isn’t much hope to start out with."
"Lisa can handle the large and complicated cases but takes equal care with the smaller cases. She is a highly skilled mediator who is a consummate professional."
Lisa Pepper is a skilled collaborative lawyer. Her instinct is always to resolve matters without compromising her clients’ interests.
Lisa Pepper is always looking for a solution and has a very sympathetic approach to clients. She is highly regarded for her collaborative law practice.
Lisa Pepper deals with separation proceedings and leave to remove cases. Sources describe her as "a great person to work with: constructive, helpful and always infectiously happy.
Lisa Pepper is a noted collaborative lawyer, and recently acted successfully on a client's leave to remove application to Australia.
Insights from Lisa PepperVIEW ALL
Judge ignores pre-nuptial agreement but factors in non-matrimonial...
Case Law One of the reasons I am still passionate about family law, after 20 years in the field, is that...Read more
Pension sharing on divorce
What is the new procedure for pension sharing? Pensions are one of the biggest assets of a marriage, yet many...Read more
What is a transfer of equity?
Transfer of equity in divorce Transfer of equity refers to the process of transferring part or all of a property...Read more
Do You Have To Go To Court For...
If your divorce is uncontested and there are no disputes over issues such as what happens to the marital home...Read more
My ex has cut me off during divorce
Can my spouse cut me off financially? Unfortunately, it is far too common that when a client says it’s...Read more
How the Court views loans from parents during divorce A frequent issue in financial divorce cases is a loan from...Read more
Mediation or Arbitration: What’s best for me?
Few divorcing couples want to end up in court, which is why mediation and arbitration are faster and more effective...Read more
Private Financial Dispute Resolution (FDR) for Divorce
Private FDR helps divorcing couples reach a financial settlement Our specialist divorce lawyers are keen to ensure our divorcing clients...Read more
6 cases that shape a private children dispute
Family disputes involving children can be particularly emotive, which is why our expert children lawyers work tirelessly to understand how...Read more
Are irreconcilable differences grounds for divorce?
If you have come across this article it may have been as a result of an online search to see...Read more
Negotiating financial settlements in divorce
Costly and acrimonious divorces: a lesson in what not to do If you’re determined to pursue your financial claims...Read more
Keeping social media out of divorce proceedings
We’ve recently seen the playing out on Twitter and Instagram of the high-profile separation of actor Ioan Gruffudd and...Read more
How to speed up a divorce
6 steps to speed up the divorce process For many people, once they have made the decision that their marriage is...Read more
Case Law Divorce Settlement
6 cases that shape your divorce settlement Part of what makes our divorce lawyers experts in their field is knowing what...Read more
Child Maintenance: When is capital, income?
Reading a recent case from the Child Maintenance Tribunal, I considered it worth flagging up that the Child Maintenance Rules...Read more
Divorce in your 60s – The Financial Implications
How common is a divorce in your 60s? The latest divorce figures from the Office of National Statistics (ONS) show...Read more
Financial responsibilities of father on divorce
What are the financial responsibilities of a father on divorce? The period drama Bridgerton, the runaway success of the winter,...Read more
Can you contest a prenuptial agreement?
Kanye West and Kim Kardashian are getting a divorce after nearly seven years of marriage. According to reports, Kim filed...Read more
Lockdown rush to cohabitation leaves couples lacking financial...
When the lockdown was announced many couples had to make a rushed decision to move in together or face months...Read more
Mediation by Zoom
At Osbornes, our Family Law mediations are in the main, conducted by Zoom during lockdown as our main office in...Read more
Setting aside a financial remedy order
What has been the impact of the coronavirus pandemic on financial remedy orders? Can you do it at all? Barder...Read more
What is a collaborative divorce? A collaborative divorce is where you and your spouse agree to resolve all matters arising...Read more
The Resurrection of Calderbank Offers When a couple divorces, they are encouraged by the Courts to consider other dispute resolution...Read more
Bankruptcy and Divorce
Will my spouse declaring bankruptcy affect my divorce settlement? The case of Hayes v Hayes (2012) EWHC (Ch) (Chancery Division (23.03.12) (unreported...Read more