Father v Mother

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court. MRS JUSTICE LIEVEN:

1. This is a long-running case concerning two young boys: A, aged 11 and three-quarters and B, aged nine. It is the father’s application for contact. The parties separated when A was about three. B was a young baby. At that point, the mother made allegations of domestic abuse. The father started the first proceedings for contact in 2016. They culminated in a fact-finding hearing before District Judge Wildblood, as he then was, where he made findings against the father and made a section 91(14) order.

2. There was a subsequent period when the father went to prison, this was unrelated to the mother but for other reasons. In 2018, he made a further application for contact and he was released from prison in February 2022. It is relevant I record two things at this point: first of all, the father did a great deal of work whilst in prison concerning domestic abuse and relationships; and, secondly, the father had commenced a new relationship. I understand he has a child by that relationship whom he now lives with and there is no suggestion of any safeguarding risk in respect of that child.

3. On 9 September 2022, the father made an application for leave, pursuant to the section 91(14) to seek a child arrangements order. On 27 September of that year, HHJ Patel refused leave. The father appealed that decision and the appeal was successful, culminating on 16 March 2023 with Sir Andrew McFarlane, the President of the Family Division, granting the appeal on the grounds that HHJ Patel’s order was made in breach of natural justice and of the father’s Article 6 rights. The matter first came before me on 24 May 2023 and I granted leave for the father to bring proceedings. Since then, there has been a series of hearings and both I and the family court advisor have done our utmost to try to manage some buildup in contact between the children and the father. The matter is listed today for a final hearing.

4. The father has, since the last hearing, been recalled to prison. There was also a point where he was being investigated for indecent images on his computer which led to the stopping of contact. However, a decision has been made for no further action in respect of that and I do not take it into account. I simply refer to it because it is one of the matters that has led to some delay in building up contact.

5. On 16 June 2024, the father was recalled to prison, he says for reasons that go back to an offence of many years ago and not giving his parole officer the relevant information. To some degree, the reasons do not matter, as they seem to have nothing directly to do with this case. Those issues have led to contact being even more difficult and inconsistent than it might otherwise have been.

6. In my view, by far and away the most important matter before me today, is that A has been consistently unenthusiastic about contact and, indeed, is now highly resistant to contact. My reading of the evidence is that it was fair to say that he was not particularly happy about the electronic indirect contact. There have been two direct contact sessions, face-to-face. The first went ahead. The second, A refused to engage and became upset. I note through Ms Renton this morning that the father says that the contact workers felt that A was coming round to contact, but I am not sure that the evidence supports that.

7. The father’s position today is, and has consistently been, that he very much loves the children. He wants a relationship with them and he very much wants direct contact to be resumed and to be built up. He has gone to great lengths to try to reestablish a relationship.

8. The mother’s position has always been that she will support a relationship between the children and the father if it is in their best interests. However, she believes that it is not in their best interests at this time. The family court advisor has come to the conclusion somewhat reluctantly that contact should now stop. She has taken into account A’s wishes and feelings which have been strongly expressed to her. She has also taken into account, what I would describe as B’s “lack of enthusiasm” for contact and his saying that he really cannot see the point.

9. I note from the Guardian’s report and all the evidence that there is no suggestion that the mother has encouraged the boys in this stance or has done anything other than be supportive of contact in principle as long as I say it is in the boys’ best interests.

10. In terms of A’s position, A spoke to me last week over Teams. I thought it was interesting that he had told Ms Randall and the Guardian that he wanted to speak to the judge directly because he wanted to make sure that the judge understood his position and that nothing got “mixed up” of what he had said. He plainly does not trust the adults to pass on his views sufficiently clearly. A was articulate and extremely clear that he did not want to see his father. He said he simply did not see the point and that he did not want to do it. He could not have been clearer. Conclusions

11. The Guardian points me to Article 9 of the UN Convention on the Rights of the Child. The child’s right, under Article 9 is to have a relationship with both parents. I would like to emphasise, in this case as in all others, that this is a “right” of the child, not a duty on the child. The fact that there is such a right does not mean a child should be forced to have a relationship against their clearly expressed wishes.

12. I would also like to point to Article 12 of the same Convention which states: “ Article 12

1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.”

13. There are a number of reasons, in this case, why, in my view, no further direct contact should be ordered. First of all, A has expressed his view clearly and consistently over a long period that he does not wish to have direct contact. A is 11, nearly 12 and his views, in this respect, deserve a great deal of weight. He probably is not Gillick competent, but he is an intelligent articulate child, who has been prepared to consider and engage in contact and has decided that he does not want to continue with it.

14. Secondly, there is evidence that A finds contact both stressful and distressing. In my view, the Court should be slow to force a child to do something which is causing them distress unless there are very good reasons. There may of course be cases where a child is resistant to contact and need a lot of encouraging to try it, but there is good reason to believe that it will work in the longer term. But that is not this case. A has tried contact and is adamantly opposed.

15. Thirdly, the benefits of contact, at this time, in my view, are entirely for the father and not for the best interests of the children. The rights under the UNCRC are rights of the child, not rights of the parents.

16. Fourthly, B would probably accept contact if I ordered it if A went but without A’s support, he finds contact extremely difficult. Accordingly, although his wishes and feelings are less clearcut than A’s, A is recorded as saying that he effectively sees no point in contact. I note, at this point, that, as the Guardian records, A is old enough to remember the time when his parents had a highly conflictual relationship and, on the findings of District Judge Wildblood, which I think are clear, the father behaved extremely badly. It is, therefore, easy to see why A is very unenthusiastic about contact. B is probably too young to have the same memories but equally, that means that he has no real relationship with the father.

17. Fifthly, there is no evidence that the mother is turning the children against the father or is anything other than supportive of contact if the children want it. However, she, quite rightly, wants what is best for the children. There are perfectly legitimate and understandable reasons why A does not want contact and why B is indifferent.

18. Applying the Welfare Checklist in section 1 of the Children Act 1989 , it is my view that it is not in these children’s best interests to have direct contact. They neither wish for it nor is it, apparently, doing them any good at all. They can maintain their knowledge of their father and their identity within the family through limited electronic contact. What is being proposed is once-a-month emails from the father which the children can choose whether to reply to or not, and letters and cards from the father at Christmas and birthdays.

19. I should note, at the end, that I hope that as the children grow up, they will see the benefit in both knowing their father and having a relationship with him but that is a matter for them as they become older. It is not, in my view, in their best interests to force them into contact at this stage. End of Judgment. Transcript of a recording by Acolad UK Ltd 291-299 Borough High Street, London SE1 1JG Tel: 020 7269 0370 [email protected] Acolad UK Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. This transcript has been approved by the judge.