17 November 2010

Court of Appeal non-committal on enforcing contact: Re L-W (Children) [2010] EWCA Civ 1253

When I read this judgment given by Munby LJ a big part of me wanted to say (at the risk of sounding simplistic and old fashioned) whatever happened to children doing as they are told? I know what my mother would say. I recall "like it or lump it" being a phrase I heard often as a child. But another part of me appreciates that it is not always that simple, especially in the context of family breakdown. A child's hostility to contact is one of the most difficult situations to deal with, particularly once it has become entrenched as it had here.

The 10 year old boy lived with his father and refused to have contact with his mother. His Honour Judge Caddick, who had heard the case throughout, made compensation and enforcement orders against the father, including 200 hours of unpaid work, and ultimately a committal order. The contact order in respect of which the father was apparently in breach provided that the father would "allow the mother to have contact with" the child and "make him available" accordingly.  On most of the occasions that contact was ordered to take place, the child and/or the father answered the door to the mother and told her that he did not want to have contact.  The judge found that the father's attitude and behaviour was the root of the problem and that it was up to the father to ensure contact happened, using his parenting skills as he saw fit - there comes a point when the child has to do things even though he does not want to do them ("hear, hear" I can hear my mother saying).

The Court of Appeal however thought the judge had overstated what the orders required the father to do. It's all in those words again: to "make a child available" for contact requires no more than just that - the child to be available i.e. put at the mother's disposal. It does not mean encouraging, persuading, threatening sanctions etc; the father was not required to take such steps as were reasonable in the circumstances to ensure contact took place. There may be a moral obligation to do such things, but not a legal one.

In order for there to be a breach to the criminal standard justifying enforcement and committal orders, the offending party must not have done what he was required to do, and it must have been in his power to do it. The burden is on the applicant to show that this is the case. Once this has been established, the question of reasonable excuse comes into play.

Here, the Court of Appeal observed that it did not matter that the father had brought about the state of affairs on which he sought to rely in his defence (ie that his attitude and behaviour had caused the child's opposition to contact). On construction of the order it was not possible to say the father had not done what he was required to do - the child was at home at the due time and the father did not do anything to obstruct contact. Contrast the occasion when the father had taken the child away without telling the mother and therefore the child had not been made available for contact - then the Court held there was a breach.

Responsible practitioners would doubtless advise their resident parent clients that supporting and facilitating contact with the other parent so that it is a positive experience for the child is very much in the child's interests. However this judgment suggests that when it comes to enforcing a standard contact order the resident parent is required to do only the bare minimum.  So perhaps some contact orders need to be more specific in the obligations they place upon parents, particularly where problems are anticipated. Practitioners should certainly be aware of the limitations of the standard contact order when it comes to enforcement.

The Court of Appeal set aside the enforcement, committal and compensation orders against the father (save in relation to those occasions when the child had not been made available). The Court felt that it was too late in this case to use committal as an appropriate remedy because the child had become entrenched. The prospects of committal having the desired effect were very small, and the potential damage to the child was too great. It was doubtful the father could undo the child's objections to contact and the child was unrelenting when faced with the prospect of his father's imprisonment which tipped the balance against committal. The court was concerned not to give the child a weapon - to save his father from prison by agreeing to contact, or not. And of course it may be entirely counterproductive, blame and guilt causing further damage to the relationship between the mother and child.

Munby LJ acknowledged the difficulty in getting the timing right. Committal is said to be a remedy of last resort, but that does not mean you should wait so long that the moment has passed and the situation is irretrievable. It does mean that it should not be used unless it is a proportionate response, nor if some less drastic remedy will provide an adequate solution.  Committal for a short period (or the threat of it) may be more effective if used earlier in the process. Hindsight is 20/20.

This area is notoriously difficult and frustrating. Whilst you want to see the parent who has undermined the child's relationship with the non-resident parent held to account for the damage they have undoubtedly done the child, it is very difficult to do so without causing further harm and distress to the child and exacerbating the problem. In the wise words of Sedley LJ [para 122] "...the law is not omnicompetent, perhaps most of all when, equipped only with its received or inherent powers it is called on to intervene in the subtle and unpredictable business of childcare and human relations".

Perhaps in time the child will change his view, or perhaps he will become more opposed to contact whether or not as a result of his father's influence. The mother has now applied for a transfer of residence. The father's application for transfer to the High Court has been refused (he clearly felt the judge was against him). Balancing hearing the voice of the child and judging what is in his best interests is not easy. I do not envy His Honour Judge Caddick the decision he has to make one little bit.

Hayley Trim is a Family Law PSL at Jordan Publishing and was formerly a family solicitor practising in London.

She works on the Family Law online major works providing updating notes on cases and other relevant developments as they happen for The Family Court Practice, Children Law and Practice and Matrimonial Property and Finance online.

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