Judge says twelve year contact case violated human rights of father and daughter

Court house doorLord Justice McFarlane has allowed a father’s appeal against a ruling made last year limiting him to email contact with his daughter, along with Christmas and birthday presents.

The father’s application for contact or residence will now return to the courts for another hearing.

In A (A Child), the Lord Justice identified “deficits” in the judgement, saying Judge Goldsack had not properly analysed the amount of weight to be given to the views of the man’s now 13 year-old daughter, called ‘M’ in case reports.

She had claimed to be opposed to further contact with her father. In his ruling, the Lord Justice McFarlane noted:

“The judge concluded that, at the age of 13 years, M’s wishes could not and should not be overridden. The father’s case is that the judge should not have accepted M’s recent utterances as being a true indication of her wishes and feelings, given her apparent willingness to contemplate further contact only some six months prior to the final judgment and he asserts that the court should not abdicate its responsibility to make orders that afford paramount consideration to M’s welfare when the child would plainly benefit from having a full and ordinary relationship with her father.”

The ruling is the latest stage in a parenting dispute between the parents which dates back more than a decade. The Court of Appeal judgement sets the scene:

“M’s mother ["the mother"] is now aged 48 years and her father ["the father"] is aged 60. M’s parents separated in May 2001 when M was only some 21 months old and the first application for contact was made by the father five months later in October 2001. The litigation concerning M between the parents has continued, almost without interruption, for the ensuing twelve years. Since 2006 alone there have been no fewer than eighty-two court orders. At least seven judges have been involved in the case at one stage or another and over ten CAFCASS officers have played a part, initially as report writers and, latterly, as M’s children’s guardian.”

The judge expressed sympathy for the father:

“This is “an unimpeachable father” against whom no adverse findings of fact have been made at any stage in this process and whose demeanour before this court, as it was apparently before [Judge] Goldsack, was dignified and measured despite the enormous frustration and anger that he must feel. So far as the mother is concerned [Judge] Goldsack held that he had “no doubt that ….mother has always been implacably opposed to contact” to the father and to the extended paternal family. In relation to M the judge was equally plain: “the evidence is clear that whenever M has contact with father it is positive and that M does love her father.”

Lord Justice McFarlane went to conclude that the complex and highly lengthy case had violated the rights of both M and her father under Article 8 of the European Convention on Human Rights, which governs the right to respect for “private and family life”.

He explained:

“I can only conclude, as I have stated, that collectively the combined interventions of the court over this very extended period have, from a procedural perspective, failed to afford due consideration to the Art[icle] 8 rights of M and her father to a timely and effective process in circumstances where there is no overt justification for refusing contact other than the intractable and unjustified hostility of the mother.”

Photo of county court door by Elliott Brown via Flickr under a Creative Commons licence

 

 

Marilyn Stowe

The senior partner at Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers with clients throughout the country, in Europe, the Far East and the USA.

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8 comments

Luke - September 10, 2013 at 6:01pm

The original judgement only allowing email contact suggested to me that Lord Goldsack had completely lost the plot. It seems that Lord Justice McFarlane agrees with me on this.

Can anybody imagine such a ludicrous decision being made against the mother?

Lord Goldsack desperately needs to ‘spend more time with his family’…

Paul - September 12, 2013 at 2:28pm

It is pretty sick that we have a family court system that allows cases like these to drag on for so many long years. Is it any surprise that the girl becomes alienated and the court then sides with the mother against the father?

And still the politicians blather on about fatherlessness yet nothing ever changes. It is one sick, evil mess.

Bill - September 13, 2013 at 9:51am

Paul, don’t forget what the dad-bashers love to say: ‘unfairness in the system is just your perception, because we live in the best of worlds where everything is right and equal’.

Michael - September 16, 2013 at 12:36am

If shared parenting is inappropriate because of the physical distance between the parents’ residences, then there must be a rebuttable presumption that primary custody is awarded to the parent that is NOT “implacably opposed to contact [parenting time for the other parent].”

JC - October 23, 2013 at 1:57pm

I have been in court for 2 years, and have just walked away because of the behaviour of the mother and the ineffectual attitude of CSA and Judge to 30 breaches of 5 contact orders. I am disgusted it has taken 12 years to get to this point, when are judges inc Sir James Munby and Lord Justice McFarlane going to realise that their peers who do not enforce orders are as guilty of child neglect and abuse as the RP or mother that seeks to exclude the father? It should be noted that McFarlane refused my ex’s demands only for the lower judge to vary the order and reduce contact.

Stitchedup - October 23, 2013 at 2:46pm

JC.. you have my sympathy.

Terry - November 12, 2013 at 10:35am

What really gets to me is just how long they allow so much blatant injustice to the fathers..and its 12+ years since I have seen my 2 daughters..around 6 months mediation,then court,then crown court, about 4 years..from day 1 I got access by court order of 4 hours every fortnight only the mother over-ruled everything.no matter what was said to the judge he would not discuss it and I knew when I told him myself its over 12 months since I saw my children and he just gave the same 4hours that something is very wrong..you stick at it hoping for some decency but I only got the same reply,he never looked at me.caffcas, even wrote that the children would benefit by giving me more time with them and I got parental rights but none of it made a difference.10 times in 4 years I saw them,and half of that was with the mother coming to my house causing trouble .injunction made no difference,she just never turned up at the meeting place..forward on to the last time at the crown court and guess what ? the judge gave me the 4hours again even though I had not been getting the contact for over 3 years..i fell apart and as it was mentioned from the start that the mother had no reason to stop me seeing them ,cafcass were happy the kids were happy with me, and I had the parental rights, all I can say is I wish I had done the best thing and got out of this sick world because when you lose your beautiful children so easily and for no reason, who wants to live? I am still on medication so at least I can write this but I am a different person and this will only get better when I don’t wake up.why is this not against human rights? its criminal,they even billed me for the pleasure..i would love to get an answer-why? from any mp but none replied to letters and my own mp came to my house but would not talk about it?

ExWhy - March 13, 2014 at 9:23pm

It,s true the child is always best with the parent who holds the least animosity towards shared and 50/50 contact orders. With practicable consideration to Siblings and extended family on both sides. Both parties Need to be aware that absence truly makes the heart grow fonder. Gender is irrelevant it can happen to us all non resident parent is the PC statement. Any bias shown by the law is against article 8 of the human rights act. For me is the most superficial way to look at this.

Father and Mother, Adam and Eve as long as there are humans there’ll be both. And darwin would turn in his grave if he knew the apex animal, one of the 10% of mammalian civilisation that has a paternal instinct!

In short why pay your tax or show any affiliation to a civilisation who can decimate our very own genome

As a father 3 years into the fight. And a son who ran away from his mother to live with his dad…. I will not stand by for a third generation god forbid it should happen

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