Court of Appeal allows a fathers appeal for direct contact with his daughters after almost a 4 year period of no contact

The Court of Appeal yesterday ruled that a father that was denied contact with his children for almost three years, had suffered a breach of his parental rights.

Three senior judges sitting at the Court of Appeal on 24^th July 2012 ruled that it was not acceptable for the mother to obstruct the father’s reasonable efforts to his two daughters. The judges urged all separated parents to see ‘the bigger picture’ and to consider the harm that the legal disputes causes their children. Lord Justice McFarlane said that mother and father had ‘a responsibility and a duty’ to help children maintain contact with the other parent. Contact disputes can go on for years and the longer the non-resident parent is separated from the child or children, the more difficult it is for contact to be resumed.

The parties in this case had had a six year relationship and were unmarried. In 2008 the mother had left home without warning, taking with her, the parties two young daughters, then aged four and one. The mother then refused to allow the father to see them, following a period of agreed contact, causing the father to issue court proceedings.

The mother had accused the father of abusive behaviour, causing the matter to be listed for a fact finding hearing. It was reported that nine out of the ten allegations raised by the mother were unproven. At one of the court hearings, the father had admitted to spitting at the mother on one occasion. In 2009, the District Judge who heard the case noted that the father was a ‘forceful character’ whom the mother found difficult to resist.

Earlier this year, the father was refused direct contact with his children, now aged nine and six, by a Judge sitting at the County Court. The father was given indirect contact and told that he could send his children, cards, letters and gifts once a month, but he could not see them because it was too distressing for the mother. The judge said that the mother would be ‘unable to cope’ with the father seeing the children having broke down in court and said that the thought of it made her feel ‘exhausted’.

The decision was challenged by the father’s legal representatives, saying that it had been based on a ‘momentary’ display of emotion from the mother in the witness box and coupled with the views of a ‘lone’ psychologist, who supported the mother’s case. The decision also went against the view of the Guardian appointed for the children.

LJ McFarlane said that he considered the HHJ Marshall’s decision to be ‘plainly wrong in that evidence in this case lacks a cogency that is insufficient to justify denying direct contact between these two children and father for the indefinite future. By the close of the case there were a number of strong positive features which pointed in favour of the re-establishment of contact between parent and child’.

LJ McFarlane took the opportunity to highlight the duties and responsibilities of both parents with the intention that by setting them out they would be bought to the attention of separating couples with children. He said that ‘in all aspects of life, whilst some duties and responsibilities maybe a pleasure to discharge, others may well be unwelcome and a burden. Whilst parenting in many respects brings joy, even in families where life is comparatively harmonious, the responsibility of being a parent can be tough. Where parents separate the burden for each and every member of the family group can be, and probably will be, heavy. It is not easy, indeed it is tough, to be a single parent with the care of a child. Equally, it is tough to be the parent of a child for whom you no longer have the day to day care and with whom you no longer enjoy the ordinary stuff of everyday life because you only spend limited time with your child. Where all contact between a parent and child is prevented, the burden on that parent will be of the highest order. Equally for the parent who has primary care of a child, to send that child off to spend time with the other parent may, in some cases, be itself a significant burden; it may, to use modern parlance be a ;very big ask’. Where, however, it is plainly in the best interests of a child to spend time with the other parent then, tough or not, part of the responsibility of the parent with care must be the duty and responsibility to deliver what the child needs, hard though that may be.’

The appeal judges accepted that the father’s absence from his own children’s lives for a number of years violated his rights, as the father’s barrister, Sarah Evans told the Court of Appeal that ‘it is a fundamental tenet of the law of this country that, save in exceptional circumstances, children have a right to a meaningful relationship with both parents.’

Lord Justice McFlarlane recognised that it was ‘a very big ask’ for the mother to accept that her children’s best interests lay in having two parents, not just one. He went on to say that, ‘where, however it is plainly in the best interests of a child to spend time with the other parent, then, tough or not, part of the responsibility of the parent with care must be the duty and responsibility to deliver what the child needs, hard though that may be’.

Lord Justice McFarlane sitting with Lord Justice Rix and Lord Justice Tomlinson, overturned the family judge’s order and directed that the mother is to ‘facilitate’ contact. Such a process was to take place under the supervision of the Guardian in a progressive and gradual manner.

The Government has announced plans to reform the law to enable fathers to see their children. The changes would highlight the fact that children have the right to have a ‘meaningful relationship’ with both parents after separation.

Satvinder Sokhal

Solicitor