A Further Call for a Tougher Stance in Enforcement of Contact Orders

A (A Child) [2013] EWCA Civ 1104

This case concerned a lamentably long-running history of litigation between two parents.  By the time the Court of Appeal considered the case, the child (M) was 13 years old. In his judgment in the Court of Appeal, Lord Justice McFarlane expressed a profound feeling of failure on the part of the family justice system.

The Facts

The parents separated when M was only 21 months old, and the first application for contact was made by the father when M was 2.  The litigation continued for some 12 years, almost without interruption.

The mother suffered from various physical and mental health issues during the course of these proceedings.  In 2007, the mother was admitted to a hospital and the father was granted residence. M lived with her father for 6 months until the mother was discharged. The father returned the child to the mother’s care after this was recommended by Cafcass and on the basis that the mother assured him she would co-operate with contact.

Since 2006 there had been some 82 court orders and the final hearing took place in October 2012.  At that hearing, the trial judge ordered that M should reside with her mother and that there should be no direct contact between M and her father.  M’s father was allowed to have indirect contact with M in the form of birthday and Christmas cards and he was granted permission to contact her school to obtain reports and information.  The judge further made an order that neither parent could make any further applications to the Court until M was 16.

As M grew older, she expressed views that she did not wish to have contact with her father, saying that she was frightened of him and that she did not trust him.  Despite this, contact, when it did happen, went well and it was accepted that it was an enjoyable experience for M. At the Final hearing, the judge found that the mother had always been opposed to contact, and that M had picked up on this.

Many experts and Cafcass officers were involved in this case, and unfortunately, there was a serious lack of continuity in personnel, contributing to the delay and complexity of the case.

The trial judge said that in all his 25 years presiding over cases, he had never come across a case which so markedly showed the failings in the family justice system.  His decision to make an order for no direct contact was fuelled by M’s expressed wish for the litigation to come to an end.  The judge concluded that the intervention of the family courts had not, and would not, work for this family and this lead him to make the orders that he did.

The Decision of the Court of Appeal

Lord Justice McFarlane carried out a comprehensive review of the case law relating to the weight to be attached to the wishes and feelings of the child and the court’s approach in cases of intractable hostility and parental alienation.  He upheld the approach taken in Re S (Transfer of Residence) [2010] EWHC 192 (Fam) that while noting the importance of a child’s wishes and feelings, the court must consider too whether those wishes and feelings are rational and reasonable.

The Court of Appeal reiterated the need for judicial strategy and consistency of approach in cases like this one and was critical of the inconsistent approach that had been taken in respect of enforcement during the long history of this case.

Lord Justice McFarlane made it clear that the Court needs to take a robust and transparent approach in cases of non-compliance with contact orders.  If a judge makes an order that is breached, then he must as part of a consistent strategy, support his order by considering enforcement.

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