Extended duration children orders

family law

Child arrangements orders usually last until the child reaches the age of sixteen. However, in exceptional cases the court can make an order beyond that age. The question, then, is what constitutes ‘exceptional’? A recent decision of the High Court of Justice in Northern Ireland throws a little light on this.

In Fergus v Marcail the mother was seeking the extension of a residence order until her son reaches the age of eighteen. The relevant provision relating to the application was Article 9(6) of the Children (Northern Ireland) Order 1995, which is effectively in identical wording to the relevant provision in this country, section 9(7) of the Children Act 1989. Section 9(7) reads:

“No court shall make any section 8 order, other than one varying or discharging such an order, with respect to a child who has reached the age of sixteen unless it is satisfied that the circumstances of the case are exceptional.”

A section 8 order is a child arrangements order (which replaced the previous residence and contact orders), a prohibited steps order (an order that no step which could be taken by a parent in meeting his parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court) or a specific issue order (an order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child).

The mother claimed that the circumstances in this case were exceptional on the following grounds:

1) The child and his two sisters had been the subject of care proceedings in 2010. In a fact-finding judgment in those proceedings the judge found that the father:

“…is a domineering individual both physically and mentally. Physically through his size and presence … mentally through his intelligence, his manipulation, his use of the pressure of uninterrupted speech … I consider that [his] overriding objectives are to exclude [the mother] from the lives of all three children and to have them in his sole care.”

The judge also found that the father “had negatively influenced all three children against their mother”.

2) The mother’s barrister submitted that the case was exceptional, as it was one of the clearest cases of parental alienation, as evidenced by the above findings made about the father, in particular his ability to manipulate the children, and as evidenced by the fact that the court had previously made an order that the father should have no contact.

3) Other grounds included the child’s expressed wishes and feelings, his inability to assert himself against his father’s wishes and therefore his felt need for the protection of the residence order, the risk of harm (in the light of the father’s manipulation) if the residence order ended when he was 16, and concern that the father may abduct him and take him out of the jurisdiction.

The father argued that the case was not exceptional, essentially denying all of the above.

Perhaps crucially the Official Solicitor, acting on behalf of the boy, submitted that he was a vulnerable young man who indicated that he required assurance that his primary residence would not change.

The case was heard by Madam Justice McBride, who made the following findings:

1) The concept of “exceptional circumstances” was not defined. She therefore found “that its ordinary meaning applies and therefore exceptional circumstances refer to a case which is unusual or deviates from the norm.”

2) This was an exceptional case, for the following reasons:

(i) The parties had already agreed an order for indirect contact between the father and the child, and that that order should last until the child’s eighteenth birthday, therefore all must have agreed to this on the basis that this was an exceptional case. Contact and residence in the case were closely interlinked and therefore exceptionality was established in respect of the making of the residence order, for the same reasons as it was required for the contact order.

(ii) This was a case with a long history of fractured relationships, as the boy was aware. The circumstances relating to the family were exceptional, as demonstrated by the making of a ‘no contact’ order. Further the boy’s perception and strongly held belief was that his father is a forceful, assertive and domineering individual who has the capacity to undermine his placement with his mother (he had informed the Official Solicitor that he was conscious of his own limitations in asserting himself against the will of his father, and he indicated that he would not be comfortable in challenging his father).

(iii) The reports of the Official Solicitor and Social Worker all painted a picture of a vulnerable young man who feels “ill-equipped to deal with the stressed created by challenging his father”. In this “David and Goliath” type scenario the boy needed the protection of a residence order, to address the power imbalance. With such an order in place he would have the security of knowing his primary placement will not change no matter what pressure is brought to bear upon him by his father.

(iv) The boy, who is now aged 15, was mindful of the protection that would be afforded by extending the order until he was an adult, and clearly expressed the wish to have the order extended.

Further to the above Madam Justice McBride found “that it is in [the boy’s] best interest to reside with his mother until he is 18 and that the Residence Order should be extended until he is 18 so that these living arrangements are settled”, that: “this is necessary to create the security he needs to ensure his physical emotional and educational needs are met”, and that: “it will establish the best foundation upon which he can build a future relationship with his father.” Lastly, she found that if the residence order was to end when he is aged 16, it was highly likely he would be at risk of suffering emotional and physical harm and that his education would be adversely affected. If the order was not extended he would feel vulnerable and he had indicated that he would be unable to cope with any pressure his father would place upon him. He had already expressed to the professionals that he did not at this time feel well enough armed to deal with the pressures and challenges his father’s behaviour might bring.

Accordingly, the residence order was extended until the boy’s eighteenth birthday.

You can read the full report of Fergus v Marcail here.

Photo by Jim, the Photographer via Flickr under a Creative Commons licence.

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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30 comments

Paul - May 4, 2017 at 3:51pm

Interesting. Clearly portraying the man as a bullying monster and manipilator. Would be interested to see what evidence they have to support that. If they are purely going off what she has said then i would be sceptical. What has made this man act this way ?
Very interesting. I would expect my expartner to argue all these rediculous things. Im not sure I have read enough on this case to comment on it. I would not comment on it until i had spoken to him. You never know how much he has been through our how predudicial he has found the proccess to reach this point. It certainly seems from this review to be a very clear FATHER bad MOTHER good judgement. I worked as a doorman. I was pretty well built an I wore my hair short (shaved) I became aware that this makes it to easy for courts to label you a thug or bully. So for my final hearing I have shed pounds in weight. Ihave grown hair and a beard. I now look more like jeremy Corbyn than a doorman. I knew this would go against me in court so I have had to reshape myself to give the right impression. Do not for one minute beleive the BS that courts are trained to treat people equally. No matter what they say you will be judged on appearance. If they can label a man a bully or thug they will do so. Before I was a doorman I was an art student for 8 years and im about as liberal a person as you wish to meet. But I bet you now the judge will take one look at my broken nose an I will be labled a thug. Who is a physical menace to everyone. I Garuntee it !!!

Nick Langford - May 4, 2017 at 7:22pm

It jars, to say the least, when a man’s size and intellect appear to count against him; the judge comes across as not a little prejudicial. I have known ex service men be presented as potentially violent in court because they have been trained to kill. It is a sad state of affairs when you need to look like Jeremy Corbyn to achieve contact with your children.

John Bolch - May 9, 2017 at 11:22am

Hi Nick – long time no speak!

I haven’t seen the 2010 judgment, but I’m not sure that the judge was simply counting the father’s size and intellect against him. Rather he was saying that the father used his physical presence and intellect to dominate others – that would be a valid point.

As for looking like Jeremy Corbyn, I’ll leave it to others to decide whether that would be a good idea!

Paul - May 9, 2017 at 12:39pm

If the judge gave a verdict where a woman used her attractiveness and inteligence to manipulate others. I think their maybe cause for a femanist complaint. Or am i just been a mesogynist ? Its fair to say we all use our gifts get what we want. She new what he was like when she got involved with him she new what size he was when she got with him. She did not find it intimadating then. Why so when they split up ? The judges comments do read very anti men. Does the man need to down size and play dumb to get a successful court judgement ?
I had an arguement with my ex on the doorstep once. The police turned up an tried to issue me with a PIN. He said you ‘Stood over her an shouted at her.’ I told the police officer I am a foot taller than her an i raised my voice because she was been unreasonable and would not listen to a word I said. Naturally I didnt sign it an told him to get out. Was I using my size to bully an intimidate her ? Or did we just happen to have an arguement an the police did not like the fact im bigger ? World is going mad. Women want equality and to do the same jobs as men but the law is going the other way treating women like porclain children who can make an adult decision without been manipulated or intimadated. Its a total oxymoron. It is infuriating.

Stitchedup - May 9, 2017 at 12:45pm

No it’s not valid, it’s BS and demonstrates beautifully just how contrived and biased our family courts are. How can a judge come to such a conclusion without knowing the man personally for quite some time??? Some people naturally have presence and appear imposing due to their physical size, that doesn’t make them bad people. My sister is a senior social worker and she warned me that, due to my physical appearance, I would be immediately seen as a threat by a family court judge… She has seen it happen to men/fathers too many times.

John Bolch - May 9, 2017 at 2:12pm

I think we’re getting sidetracked from the main point of this post (not for the first time!), but a judge’s findings can of course work both ways, for example where they find that a wife used her domineering personality to unduly influence a husband.

Paul - May 10, 2017 at 3:35pm

Key word you used their was ‘can’ John. But in practice they don’t. Which is why we are side tracked from the topic. The bias faced in the courts seems to be a topic people want to talk about.

John Bolch - May 10, 2017 at 6:36pm

If you want to talk about something that’s off topic, then here isn’t the place.

Brian - May 10, 2017 at 5:23pm

‘Can’… It ‘can’ only go the other way when the sex of the parent compliments it so. This would never happen in favour of a father!

John Bolch - May 10, 2017 at 6:37pm

It does happen.

Brian - May 10, 2017 at 7:35pm

Well, excuse me for not being gullible enough in this age of “post truth” and “alternative fact ” to take your word as gospel. Such is the requirement for openness when it comes to family justice at the lower tiers of the family court and not just “public interest” for gay pop stars, movie directors and gazillionaires! Public interest is “how can this affect me?” NOT “Did you read what Elton John’s been up to?”.

Stitchedup - May 11, 2017 at 8:36am

Please give examples John and a ratio if possible, I.e how many such cases go in favour of the father to how many such cases go in favour of the mother.

John Bolch - May 11, 2017 at 10:07am

I don’t have time for that, but plenty of examples are out there if you want to find them.

Anyway, I suspect that whatever evidence I were to come up with would not be enough to satisfy someone with such a persecution complex that they call themselves “Stitchedup”! 🙂

Paul - May 11, 2017 at 11:17am

Wow ‘persecition complex’. Parental alienation is supported by psycological studies. So it exists. Is a ‘Persecution complex’ a real thing ? Has it been studied ? Is it credible evidence ?
You have just used it as a slap down here.
Would you say Jews have a Persecution complex ? Or maybe the suffragettes ? Or maybe the negro slaves who work in the cotton fields or maybe the young ladies accused of witch craft in the dark ages. I’m sure at some point in history these people were all refered to by the establishment of having a ‘persecution complex’. Maybe it is cause and effect. Maybe been persecuted gives you a ‘persecution complex’ lol it would be logical.
I would compare the treatment of fathers today with all of those things. An I think history will find that also.
Anyway I don’t think you two should get entrenched in a cock fight. It helps nobody. Before long you would start barring people who disagree with you and you would end up in a dreiry ecco chamber why everyone simply agrees with you. Like the Liberal party.
I respect the fact that you do not block posts that challenge your way of thinking.

Cameron Paterson - May 11, 2017 at 12:05pm

Broadly speaking, we moderate any posts that contain the following:
a) libel
b) contempt of court
c) ad hominem insults
d) material likely to cause significant offence

John Bolch - May 11, 2017 at 12:27pm

Could you add “e) material that is not relevant to the subject matter of the post” to that? 🙂

Cameron Paterson - May 11, 2017 at 12:36pm

We’d be doubling our workload 😉

Stitchedup - May 11, 2017 at 1:12pm

Gents, people will take from the article what they feel is relevant not necessarily what John feels is relevant. Often there’s an elephant in the room that John has overlooked, in this case the absurdity that “a man’s size and intellect appear to count against him” and that “the judge comes across as not a little prejudicial”. The case is exceptional because the man is exceptionally big and exceptionally intelligent…. ?????

Stitchedup - May 11, 2017 at 11:33am

Grow up John and back-up your claims with hard factual evidence/numbers. 🙂

Brian - May 10, 2017 at 5:18pm

So ‘exceptional circumstances’ in this case doesn’t mean ‘normal’. Well considering in family proceedings every case is different then everycase must therefore be ‘exceptional’. But exceptional circumstances in most other legal occasions means…well exceptional…which no one can reach the threshold to attain! You can’t make it up…the judges do though! Talk about stitched up..the boy doesn’t even see his child directly so he’s already alienated from his father. It’s like nazi children being told American soldiers eat little German boys for supper!!!!!!

John Bolch - May 10, 2017 at 6:35pm

Could that be an invocation of Godwin’s Law I see?

Brian - May 10, 2017 at 7:28pm

Never heard of it until now. I’m certain german children were brainwashed and I’m sure some resident parent narcissists do it too to retain control. Cheap shot John. If I was hoping to oppress the views of others, I’ll just play the race card it has a greater effect than evoke anti-semitism by proxy! But that’s what socialists do – can’t deal with it so we’ll prohibit it instead – problem gets solved in their eyes and it goes away (underground )!

Brian - May 10, 2017 at 7:39pm

Clearly missed the point anyway on “exceptional circumstances”. Tell me, do all lawyers have selective hearing, or is it just those appointed to the bench?

Stitchedup - May 11, 2017 at 9:02am

Stitchedup’s law: As a a family law dispute progresses, the probability of the man/father being portrayed as a monster and violent domestic abuser approaches”

Stitchedup - May 11, 2017 at 8:49am

bbc.co.uk/news/uk-england-london-39876692
It seems the good old DV allegation failed to get this little princess off the hook.

Brian - May 11, 2017 at 10:43am

DV…It’s the female equivalent to the race card!

Paul - May 11, 2017 at 4:05pm

Seems to me that the credibility of the law courts is been questioned. The family courts stand accused by many of been sexist and discriminatory against men. Seems to me this issue needs addressing if courts are to maintain any kind of credibility. The claims of men involved in in these cases are entirely backed up by evidence and statistics. To my mind the only question is how do you bring about a trial ? How to you attempt to get judges to face judgement ?
How do you overturn entrenched institutional discrimination ?
You the legal professionals. What process would we need to follow ?
If this debate is anything to go by the judiciary would not welcome a trial.
But if im not sure yiu can carry on burying your head in the sand.

Brian - May 11, 2017 at 4:51pm

Why do you think morale is low in the judiciary? Many judges cannot understand why people consider then as something they stepped in rather than pillars of society. People are not happy with the current situation but the judiciary are failing to accept or take responsibility for the self denigrating position they maintain and do not wish to change from. Society changes but many entrenched institutions of this country are not able to adapt with the times. Darwinian theory suggests that if something cannot adapt to it’s environment then it becomes extinct. Politicians adapt..they adapt or they find themselves out of a job, the politicians pass the laws, the judges are reluctant to adapt to the new ones…too many play it safe career judges looking for their one in 108 chance of a High Court knighthood and seat…in with the big game then 1 in 10ish chance of a seat on the supreme court!…peerage and much kudos!

Brian - May 11, 2017 at 4:39pm

I provoked such comments weeks ago Paul. Appeal is the only recourse and since the powers and rules afforded to the lower courts are so broad and unfettered so as to use their discretion in matters. Appeals are few and far between. Discontent of judgement is not complaint worthy and comes under case management therefore there are no checks and balances by oversight in an independent judiciary…all paths lead to appeal, only other route is overarching legislation and policy as a whole, which does nothing to help independent cases. Independent and unaccountable judiciary. That’s why judges don’t like overturning another judge, it gives a perception of imperfection…big taboo in dishing out ‘justice’.

Paul - May 11, 2017 at 10:56pm

Pilars of society should work to keep families together not spilt as many as possible like logs for a fire. For a child their are only two pillars of society. Their mother and their father. The courts have lost sight of that somewhere. Stopping someone seeing their kids should be an exception not the norm. Also the cost of legal service is grossly out of proportion to what people can afford. The lack of legal aid needs addressing. People want judges to be fair and impartial. People want to feel like they have been heard and understood. Too many judgements don’t make sense.

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