Mother’s appeal against residence order totally without merit

This case was published at the end of March, but I was reminded about it recently on Twitter, and I thought it might be of interest to those who believe that the family justice system is biased against fathers.

The case, Re C (A Child), concerned an application by a mother for permission to appeal against an order that her daughter, ‘C’, should live with her father. The facts of the case were that the child was born in March 2012 and lived initially with her mother. Mrs Justice Knowles, who heard the mother’s application, takes up the story:

“Regrettably C has been the subject of litigation for all but 13 months of her life. There have been five sets of proceedings under the Children Act 1989; proceedings under the Family Law Act 1996; four appeals and in excess of 50 court hearings.”

In the course of these proceedings it was observed by “a very experienced family court advisor” that the “volume and nature of the allegations raised by the mother against the father was striking” and that “the strength of the father’s wish to see the child was matched by the mother’s equally strong determination to prevent this from happening.”

A final order was made in September 2016, setting out a detailed contact regime whereby the mother was directed to make C available for contact with the father. The court also made a family assistance order for a period of 12 months.

The mother did not comply with the order, and just three weeks later the father issued enforcement proceedings. Further, in March 2017 the Cafcass family court advisor wrote to the court to report that the mother was not engaging with the family assistance order.

The matter eventually went back to the court in November 2017. The judge concluded that in view of the mother’s continued hostility towards the father and the overnight contact that the court had ordered, the best thing for C’s welfare would be for her to go to live with her father. Accordingly, an order was made for C to live with her father and for the mother to have contact.

The mother sought permission to appeal. She put forward two grounds for appeal: firstly, that neither the Cafcass Guardian nor the judge had followed the correct procedures or provided continuity, and secondly that the judge had failed to apply the welfare checklist, in particular having regard to C’s wishes.

Mrs Justice Knowles rejected the first ground, primarily because the mother had raised no concerns about these matters at the hearing in November.

As to the second ground, Mrs Justice Knowles found that in view of her age C’s wishes and feelings were unlikely to be decisive, and that in any event:

“…the judge carried out a careful and thorough hearing in difficult circumstances and analysed the voluminous written evidence and oral evidence with great care to reach his decision that C should live with her father rather than with her mother.”

In the circumstances, Mrs Justice Knowles refused the mother permission to appeal. In addition, she certified the mother’s application as being totally without merit, saying: “This is most certainly not one of those cases where, for example, proper presentation might disclose an arguable ground of appeal.”

This case is a useful reminder to those who consider that the courts are consistently biased against fathers. Not only was the court prepared to take the step of moving a child from the mother to the father in the light of the mother’s refusal to cooperate, but it was also prepared to stand by that decision when considering it for the purpose of an appeal.

Of course, a transfer of the child from one parent to the other is not always a practical possibility, and even when it is the matter is still governed by what is best for the welfare of the child, rather than by a desire to ‘punish’ the ‘wrongdoing’ parent. Nevertheless, cases like this should serve as a reminder to both fathers and mothers that the courts do not favour either parent.
You can read the full report of the judgment here. (Note, incidentally, that I use the old term ‘residence’ in the title to this post, rather than ‘child arrangements order’, simply for brevity.)

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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paul - May 9, 2018 at 9:37pm

John, you are forgetting to consider that the courts are consistently biased against fathers that the final order made in September 2016 setting out a detailed contact regime whereby the mother was directed to make the child C available for contact with the father.
The mother got residence order and that is still being biased against fathers. It’s only because contact broke down and this is quite common as Parental alienation takes effect.
It was in March 2017 the family court advisor wrote to the court to report that the mother was not engaging with the family assistance order that finally common sense prevailed. I just wished there were more of these family court advisors who had the child’s needs of paramount importance. I have noticed that there is also a postcode lottery with these family court advisors where they are more lenient in the South and completely useless in the North of England.

Philip Kedge - May 10, 2018 at 7:36am

The court still got it wrong, knowing the mother’s hostility, the residence should have been transferred from the outset. The courts are far too keen to ‘see if things work out first’ when it is blindingly obvious it won’t. This leads to prolonged applications for breach of orders, new applications for residence and ongoing court hearings whilst all the time the child is being harmed.

Parental alienation needs to be identified from the outset and acted upon by Cafcass and the courts robustly. Still much more intervention needed. This is may have a happy ending, but it was mismanaged from the outset.

Phil Kedge
Director of the McKenzie Friend UK Network

Spike Robinson - May 10, 2018 at 10:13am

I’m utterly astonished that this case could be adduced as evidence to claim the courts are gender neutral. What we have here is a vexatious course of conduct and baseless litigation carried on for six YEARS before the courts finally put a stop to it, only because the father poured huge financial and emotional resources into a series of challenges many would have walked away from long before. This is the reality of the Family Courts – mother is right unless heaven and earth are moved to expose her conduct for what it is.

spinner - May 10, 2018 at 11:27am

Providing individual examples of the institutionally sexist family courts ruling in favour of men does not prove anything. In a statistical context these examples are called outliers, nobody would use an outlier to prove a point as by definition they are not normal or regular examples.

The only statistics that I’ve seen state that in 98% of cases involvement children the courts rule in favour of women. So yes you will be able to find individual examples that support your narrative that the family courts are not institutionally sexist but they don’t prove anything and actually may do the reverse because you are having to use cases that are very extreme rather than the everyday sexism men face in family courts, which the statistics as a whole prove.

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