In a recent Court of Appeal case the President of the Family Division emphasised the 'responsibility' of both parents to encourage their children to spend time with the other parent following relationship breakdown.
The parents' relationship had become so toxic that they were entrenched in their dislike of each other. Sadly, the children (aged 16 and 14) had become involved in the dispute and they themselves had become diametrically opposed to contact with their father, who wished to spend time with them.
In cases like these, the parent refusing to encourage contact between the children and the other parent will often seek to justify it by saying that the children do not want to see the other parent. In his judgment, the President was particularly critical of this stating that it was not acceptable for parents to 'shirk their responsibility by sheltering behind the assertion that the child will not do, or even that the child is adamantly opposed to doing something…whatever the age of the child'. He then went on to list the various 'boring' things that children often have to do against their will including visiting elderly relatives and doing homework, presumably to illustrate the point that children often resist doing things that will be 'good' for them in the long-run!
In terms of what a parent is required to do, the President had this to say: '…what one can reasonably demand…is that the parent, by argument, persuasion, cajolement, blandishments, inducements, sanctions…or threats falling short of brute force, or by a combination of them, does their level best to ensure compliance'.
While this is pretty strong stuff, the father did not succeed in his wish to spend time with his daughters and both the President and his fellow judge, Lady Justice Black, acknowledged the limitations of the family justice system to solve problems by the time they had got to this stage (i.e. years after hostility had set in to the point that the children who clearly had minds of their own, were diametrically opposed to direct contact with their father). In fact, the President laid much of the responsibility specifically at the mother's door and stated that only she could take the necessary steps to improve the children's relationship with their father.
How can these tragic cases be avoided?
1. Intervention at an early stage
Identifying cases at an early stage that show the hallmarks of difficulty so that teething problems with contact (often related to anger and bitterness following relationship breakdown) can be dealt with before they escalate into a long-running dispute is crucial.
2. Judicial continuity
Judicial continuity is key so the judge can get to know the parents and take a robust approach where needed.
3. Focus parents' minds on the best interests of the child
Giving parents the opportunity, at an early stage, to give evidence regarding the best interests of the child, can focus minds on that, and the way forward, rather than allegations about events that have occurred in the past.
Mediation has also become an increasingly popular way of making child arrangements and the involvement of a reasonably experienced and forthright mediator at an early stage can also help to iron out those communication difficulties that can later develop into more serious disputes.
A cause for hope?
A recent High Court case involving a dispute regarding 12 year old twins that had been going on for over 10 years with 24 court hearings during that period gives cause for hope. In the judgment in this case, the judge referred to the fact that she had 'talked tough' to the parents at an early directions appointment and told the mother that, if she concluded that the children were being 'emotionally harmed' due to the mother's resistance to them having a good relationship with their father then she would 'actively consider making changes to the residential arrangements' i.e. potentially removing the mother's rights of residence of the children. The judge had also made practical suggestions to make handover times more pleasant for the children but, while the parents responded well to this suggestion, the general hostility between them continued.
However, at the next hearing, matters developed in such a positive way that the parents and their representatives were able to reach an agreement regarding how the twins spent their time.
During the hearing, the judge had insisted on oral evidence from everyone involved, which had turned out to be productive because all of the family members ended up acknowledging their own role in the dispute rather than just blaming others. The judge also spoke with the children personally (with the consent of the parents and the Children's Guardian) which seemed to have been helpful. Finally, the parties had been represented by, in the judge's words 'highly skilled, insightful and intuitive representatives'.
The judge described the positive outcome as a 'collaborative' effort and it does seem essential in such long-running disputes for all of the professionals involved, and the parents themselves, to show utter commitment and tirelessness in working together to try to reverse the pattern of years of acrimony.
Ultimately, there are no easy answers in such situations but I believe that the robust guidance such as that given by the President recently can only help in sending a message to parents that they have an obligation to ensure that both parents play an important role in children's lives, regardless of their personal feelings about the other. The question is whether the courts will back such tough talk up with action.
If you require further information on anything covered in this briefing please contact Annmarie Carvalho (firstname.lastname@example.org; 020 3375 7174), or your usual contact at the firm on 020 3375 7000. Further information can also be found on the Family page on our website.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, October 2015
 Re H-B  EWCA Civ 389
 Re J and K (Children:Private Law)  EWHC 330 (Fam)
How far is a parent required to go to encourage contact with children.pdf243kB