Implacable hostility and delaying a children act application.
The recent case of A (A child)  EWCA Civ 910 was an appeal in relation to an order made in respect of contact and residence (now known as child arrangements orders). The Court of Appeal described the outcome of the case as tragic but it still chose to uphold an order that there be no direct contact between the father and the child aged 12 despite their having been no findings made against the father.
The mother and father separated in 2005 and there was initially some contact between the father and son for an hour or so twice per week However, contact broke down in January 2006 and matters deteriorated. The father issued an application under section 8 of Children Act 1989. There was a CAFCASS report and a recommendation that there be fortnightly staying contact. Following this, around February 2007 there was an issue when the father returned the child late and there were a number of reports made by the mother to CAFCASS, social services, the police and NSPCC. It seems clear, however, that at this time when contact took place it was a positive experience and the child had indicated his wish to see his father to CAFCASS.
Withdrawal of application
Surprisingly, perhaps, having come so far in April 2007 the father chose to withdraw his application in April 2007. He later indicated that this was due to the impact that the stress was having on the mother and her ability to cope with the child. At the appeal the father described this as “the most ill-advised decision of his life”.
In 2010 the father made a further application but by this time the mother had developed and consolidated an increasingly negative view of the father as being harmful and the child had also started to adopt that view. The matter only came for final determination 4 years later.
The parties were assessed by a psychologist. The mother was assessed as having a high level of anxiety meeting the criteria for PTSD but it didn’t seem that it was clear what this was due to and whether there was any real issue or threat from the father or whether it was simply a perceived threat. The psychologist’s assessment of the father was much more positive but overall their view was that contact would not succeed as the mother was continuously communicating to the child that the father was dangerous.
The judge at first instance found that an change of residence for the child (the father requesting he live with him) would be very damaging and declined to make such an order. However he went further and also declined to make a direct contact order on the basis that it would be detrimental to the mother’s health and would cause the child distress. He was clear that he did not feel that the father presented any risk to the child and that was not the basis of the decision.
It is a somewhat sad outcome that a father who had been described at first instance by a judge as “a calm thoughtful and caring man” will not now see their child and further that the child will be deprived of a relationship with his father.
Not only is this case tragic but it does also underline the difficulties which can occur when one party thinks (perhaps for the best reasons and hoping that matters calm down somewhat) that they should delay or withdraw an application to court and this leads to a situation where for a significant period a child does not have contact or regular contact with one parent. Although the parent that withdraws or delays may have the best motives they can sometimes find that this is used against them should matters return to court and come to regret that decision.
Every decision in relation to a child is potentially a difficult one and the decision to proceed with court application is not one which should be taken lightly and parties have to balance the potential costs and stress against the benefit which can be achieved but equally a decision to withdraw or do nothing must be considered in light of all of its possible ramifications.
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