The recently reported case of T v S  EWHC 2521 (Fam) underlines the difficulties which parents can experience have following separation in relation to day to day decisions and learning to co-parent apart.
The case related to a boy who was born in May 2007 and at the time of the hearing was just over 6 years old. There had been ongoing litigation between the mother and father for four and a half years and the parents could agree on very little.
As a result the child had been made a ward of court (which effectively means the child is under the protection of the state). A substantive order was made on 11 December 2012 by Mr Justice Hedley and the judgment he gave was referred to in T –v- S as “depressing reading”. The order set out when each parent was to have care and control of the child and it delegated the exercise of parental responsibility by way of a schedule.
One heading of the schedule set out issues about which one parent had to inform and consult (but was not obliged to obtain consent from) the other before making a decision. This list included planned medical and dental treatment.
It was on the specific issue of dental treatment that T –v- S came before the court. The President (Sir James Munby) who heard the case, however, commented that whilst the application may have been triggered by the issue of medical/ dental treatment that it was really an attempt to substantially reopen the case.
It was common ground between the parents that the child needed dental treatment but they could not agree on the form of treatment and each produced a letter in support of what they were proposing by a dental clinic. The President noted that he could invite the dental practitioners to file an expert report and come to a judicial decision about what treatment was the most appropriate. However, he felt that this would undermine the specific provisions and the fundamental philosophy of Mr Justice Hedley’s original order.
In the original judgment of Mr Justice Hedley there were a number of passages where he emphasised the need for parents, as the parents, to decide what should be done. A specific example was given in relation to an inability of the parents to agree on where exactly in Clapham Junction Railway Station handover of the child should take place.
The President felt that the order of Mr Justice Hedley was the best order which could have possibly been achieved in the circumstances and accordingly he decided to dismiss the father’s application and not to make any order in relation to the question of dental treatment. He was making the overarching point that the court should not be called in to micromanage the parent’s relationship and disputes between them.
From an outsider’s perspective it is difficult to imagine why or how the parties’ positions became so polarised that they have ended up spending years of their lives and likely significant amounts of money litigating. What seems clear is that it cannot be in the child’s best interests for this to continue.
It is inevitable that any separating couples will have disagreements and may not have the same views on issues such as health, education, bedtimes or appropriate foods. To avoid ending up on court couples need to use the resources available to them such as online tools and information, workshops or mediation and find a way to work together. Some useful information can be found at http://www.relate.org.uk/.
There will be some occasions where parents still can’t agree and there may be no option but to ask a court to step in. More information about the court’s powers in relation to the children and what to do if you and your partner disagree in relation to fundamental issues such as the time which you each spend with the child, where the child should live, where they should go to school and so on can be found at our webpage www.family-law.co.uk/services/children-law.
This area of law is governed by the Children Act 1989 and can be found here.
Specifically it is worth drawing attention to the welfare checklist which is set out at paragraph 1(3). This sets out that the court should have particular regard to the following:
- To ascertain the wishes and feelings of the child concerned (considered in light of his age and understanding);
- His physical, emotional and educational needs;
- The likely effect on him of any change in circumstances;
- His age, sex, background and any characteristics of his which the court considers relevant;
- Any harm which he has suffered or is at risk of suffering;
- How capable are each of his parents, or any other person in relation to whom the court considers the question be relevant, is of meeting his needs;
- The range of powers available to the court under the Act in the proceedings in question.
Ultimately the court will be looking to achieve an outcome that is in the best interests of the child. In order to establish this it may require evidence from parents and/ or other people who have close contact with the child and it may also enlist the assistance of CAFCASS (Children and Family Court Advisory and Support Service). A CAFCASS officer may speak to a child or children directly to help establish what their wishes and feelings are and what would be best for them.