It’s time for the Judiciary to wake up

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Estimated reading time: 4 min

This week saw the publication of Re J (A Child – Intractable Contact) [2017] EWFC B103 (19 December 2017)  by His Honour Judge Bellamy sitting in Derby.

You can read the full details here:
http://www.bailii.org/ew/cases/EWFC/OJ/2017/B103.html

The case deals with a father who has requested permission from the court to withdraw in the face of flouted contact orders and a continued strategy of obstruction and parental alienation by the mother.

The important bit comes at the end.

The father’s position today, as I have already indicated, is that he still wishes to withdraw his application. He takes that position not because he does not love his son – indeed, I am in absolutely no doubt that he loves J a great deal – or that he has lost interest in this litigation. These proceedings are emotionally distressing for the father. He is immensely frustrated that, as he would see it, this mother has deliberately flouted orders made by this court and the court has appeared powerless to do anything about it. As he rightly points out, two years ago the court made a clear finding that J’s mother has emotionally abused J, yet the court has not been able to deliver an outcome that helps J to recover from that abuse or prevent that abuse from continuing into the future.

20. From the father’s perspective, continuation of these proceedings may well do more harm than good so far as J is concerned. After seven continuous years of litigation – litigation which has singularly failed to enable him to have a meaningful relationship with his son – it is time to give up the fight and, although he does not put it in these emotive terms, to admit defeat. The Children’s Guardian shares the father’s concerns. She now supports his application to withdraw the proceedings and shares his views as to the reasons why they should be withdrawn.

21. There is clear research evidence that children whose parents separate do better as they grow up towards and into adult life if they are able to maintain a positive relationship with both of their parents. I am acutely conscious of the fact that, in allowing this father’s application to withdraw these proceedings, I am taking a step which may not be in the best long-term interests of this little boy. However, with both misgivings and regret, I accept that it is appropriate to accede to the father’s request to withdraw his application.

22. I have made a particular point about this father’s undoubted love for his son. When he is old enough to do so, and I accept that that is unlikely to be before he leaves school, it may be helpful to J to read this judgment. He can be assured that his father’s application to withdraw is not intended to be an abandonment of J, but a sacrifice made out of love. This father has done more than many fathers would do to try to establish a positive relationship with his son.

23. The orders I propose to make today are these. Firstly, there shall be a child arrangements order and the following shall be addressed as part of that order:

(a) that J should remain living with his mother;

(b) that the father should be allowed to have indirect contact with J by cards and presents to celebrate his birthday and Christmas, and also by cards and letters to be sent monthly;

(c) that for so long as J remains subject to a Child in Need plan, letters, cards and presents for J shall be sent to him via his allocated social worker;

(d) that the mother shall send to the father within seven days of receipt, copies of all written school reports and of all school photographs;

(e) that twice a year in June and in December, the mother shall send the father photographs of J; such photographs shall be colour photographs and shall not include the images of any other adult or child; such photographs may be provided to the father electronically if he agrees;

(f) that if J should require hospital treatment, whether as an inpatient or as an outpatient, the mother shall inform the father promptly; if J should require surgery or become dangerously ill, the mother shall inform the father immediately;

(g) that the mother shall not make any unilateral decision concerning choice of school for J but shall consult the father, providing him with details of any school being considered; the mother shall comply with this direction in timely fashion so that the father may have a real opportunity to contribute to the decision-making;

(h) that if the mother proposes to take J out of the jurisdiction, whether for a holiday or for some other purpose, she shall give the father not less than 14 days’ notice indicating the country to be visited.

Why didn’t the Judge order an immediate change of residency?

Why didn’t the Judge order a full report on the mother to be given to the Crown Prosecution Services?

Why did the Judge find it in himself to sympathise with the father but still order that the child should remain with the mother?

[EDITOR’S NOTE: For the avoidance of doubt, we’re gender neutral – this particular case involves an alienating mother and we see and hear about plenty of cases involving alienating fathers.]

The question remains the same: why will the Judiciary not act?

How are the best interests of children served by this travesty?

His Honour Judge Bellamy makes the point himself when he says:

I am taking a step which may not be in the best long-term interests of this little boy

So ifJudge Bellamy knows that, and if Judge Bellamy is governed by the welfare checklist to always make judgements in the long term best interests of the child why hasn’t he?

 

In a Family Law system designed for combative parents there is no real allowance for the views of children and any understanding of how Family Law ultimately impacts on children most of all.

We speak for the children in Family Law so that, finally, the children have a voice.