Intractable contact disputes – Re H-W (A child) [2017] EWCA Civ 154

Head of the Family Team, Joseph Lynch explores the recent decision of the Court of Appeal and it’s not great news for non-resident parents in contact disputes.

Lawyers are often confronted with clients who think that they have a “human right” to see their children.  Sometimes this assertion is accompanied by a list of areas that the applicant wishes the court to explore. That list of grievances is often long. It is sometimes aimed at score settling rather than being awarded contact. It almost always results in a need for robust advice.

This case re-asserts the idea that contact, and the benefit of it is to be viewed and assessed through the prism of s.1 (3) of the Children Act 1989 with the welfare of the child the paramount consideration.

HHJ Newton made the initial ruling at the Civil Justice Centre in Manchester

In this matter, the Court of Appeal was concerned with the welfare of a nine-year-old boy and the decision of HHJ Newton that his father should not have contact with him, because it was not considered to be in his best interests.

The matter had been before the court in various guises. The Court of Appeal had even been considered a previous decision of the lower court in this case.  Various findings had been made against the father but direct contact had not been ruled-out.

On 17 May 2016 HHJ Newton dismissed the father’s application for direct contact with his son, provided for indirect contact between the father and son in the form of letters, cards and small presents, and made a family assistance order under section 16 of the Children Act 1989 requiring CAFCASS to make an officer available to advise, assist and befriend W and his parents. It is against that order that the father appealed against.

In the Court of Appeal

The father appealed the decision on three grounds. He claimed that the court had:

(i) failed to seek assistance from an expert,

(ii) failed to consider W’s interests in the longer term when he is older, and

(iii) failed [force] the mother to engage in therapy and make further efforts to facilitate contact.

 

Black LJ upheld the decision finding that the judge had not been wrong to make no order for contact having regard to all the circumstances of the case.

The Court of Appeal helpfully clarified the following point in respect of the court’s duty to re-establish contact in such cases by saying:

 

[50]……… If the father was going so far as to submit that the court has an obligation to try every single possibility that might, in theory, achieve direct contact, that does not accord with my understanding of the position. The obligation of the court is to make a decision about contact, with the child’s welfare as its paramount consideration (section 1(1) of the Children Act 1989), and having regard in particular to the matters set out in section 1(3) of that Act. Within this framework, the task of the judge is to weigh up the pros and the cons of what might be possible ways forward, looking to see what chances they have of working, what benefits they might bring and what harm might be occasioned in the attempt. This exercise may lead to the abandonment of some options that might have looked worth pursuing.

 

In making these observations, the Court of Appeal is giving clear guidance.

In long-running proceedings, where the potential for causing harm outweighs the potential benefit of direct contact, the court has to take the decision, often reluctantly, that it must end proceedings for the benefit of the child.

Lawyers must manage client expectations. Wild goose chases exploring fanciful options that have no realistic prospect of success are not to anyone’s benefit.

It is often one of the most difficult conversations to have with a client. Nevertheless, the guidance is clear: lawyers must advise properly.

Practitioners must be discerning and forensic in guiding their lay clients towards the best lines to pursue. This will make proceedings shorter and better value for money. It will also increase the likelihood of a good result. In child arrangement proceedings, lawyers filter and focus their clients’ instructions. They must not shy away from this important function.


Central Chambers family team has recently expanded and is set to continue doing so in the new year.

We cover all aspects of public and private family law, not just contact disputes and child arrangements orders.

Public Law

We act for all parties in Care Proceedings.  We have experience in dealing with Special Guardianship Orders and Family Assistance Orders as well as applications for Parental Responsibility and Contact Orders within Public Law proceedings.  All members of chambers take a special interest in dealing with those who are most vulnerable at difficult times of their lives and are especially skilful at explaining difficult positions to clients in order that they make informed choices about their and the children’s future.

Private Law 

Members of chambers represent parents and grandparents in matters of Parental Responsibility, Residence Orders, Prohibitive Steps Orders and in Contact Disputes.

We also have vast experience of cases involving domestic violence.  Most of the Family Team have experience of criminal proceedings and utilise that knowledge to ensure that ongoing proceedings do not impact upon the family situation. We are fully up-to-date with the recent changes in legal aid in contact disputes.

We are used to dealing with clients at times when emotions are still very raw and pride ourselves in aiding our clients to view the wider picture and to achieve a solution they will be content with in the future.

Ancillary Relief   

We accept instructions of financial disputes following matrimonial break-up including foreign marriages and/or divorce.  We can also advise in relation to cohabitation.

If you would like to instruct Joseph Lynch, please contact the clerks’ room by by calling or by emailing them.

If you are a barrister looking to join a thriving set in the heart of Manchester, please read more about opportunities with us here.

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