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.
The courts increasingly recognise parental alienation – where a child’s resistance or hostility towards a parent is unjustified. Even the most subtle form of parental alienation can have a devastating impact on a child.
Deliberate or inadvertent psychological manipulation by the other parent typically prompts parental alienation. It can cause the child emotional confusion, anger and anxiety, resulting 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 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 prioritised 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 likelier to be alienated than estranged 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 her 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.
In recent years, we have seen major developments in understanding domestic abuse and applying 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 behaviour patterns 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 behaviour patterns 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, considering 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.
This case dates back to 2011, but it remains good law today for relocation cases abroad and emphasises the principle that the child’s welfare 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 shared care arrangements’ significance.
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 provides 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 because relocation to Canada 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.
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 allowed the mother to move with her daughter, aged 10, from London to Cumbria. Though the child lived with the mother, she spent alternate weekends and two weekday nights with her father. The CAFCASS report recommended against the move, even though the child 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. Once again, The court made clear that the child’s welfare remains paramount. 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 case’s particular facts. This requires a holistic balancing exercise, considering all the relevant factors, varying 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 child’s welfare.
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 determining 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 several 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. Still, 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 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”.
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 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 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 a child’s upbringing, welfare prevails.”
How can we help?
Osbornes Law has a team of expert children lawyers in London who can discuss your circumstances. It will explain the full range of options for you and child and divorce and separation where required.
While these cases only relate to English law, we deal with 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 updated 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.
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