Two recent decisions in child contact cases illustrate that the courts recognise the importance, where possible, of children having a relationship with both of their parents.
The Children and Adoption Act 2006, which came into force in December 2008, gives the courts more flexible powers to facilitate child contact and to deal with cases where one parent fails to comply with a contact order. For example, a resident parent who breaches a contact order can be required to carry out unpaid ‘community’ work for up to 200 hours. The Act does not, however, provide any new enforcement measures against a parent who obstructs contact with the other when a shared residence order has been made.
When a couple separate and a hostile relationship exists between the parents, it is not uncommon for the resident parent, often the mother, to deny the other parent any right to contact with their children. If this situation is allowed to persist, it can result in the children becoming alienated from the non-resident parent.
Recent cases suggest that where the resident parent is implacably opposed to any contact with the other parent and there is no justifiable reason for their refusal to cooperate with a contact order, the courts may be more willing to consider transfer of residence as a way of safeguarding a child’s best interests in the long term.
In November 2009, this was the reason given by the Court of Appeal for upholding a decision to order the transfer of residence of a child from the mother to the father. In a more recent case, where the mother had deliberately obstructed the father’s access to his child, the Court again decided that it would be in the long-term interests of the child to live with his father and half-siblings, even though the child had made it clear he had no wish even to see his father and the judge found that the mother had been a good mother in most respects.
Whether this represents a shift in attitude by the courts, only time will tell.
Sir Nicholas Wall, President of the Family Division, recently criticised separating parents who wage legal war on their children, using them as ‘the battlefield and ammunition’ in their own personal disputes. Commenting on the Family Justice Review currently underway he said, “I have no idea what the final recommendations will be, but you do not need a crystal ball to see that legal aid for private law proceedings is likely to be further diminished if not abolished: that long and protracted contact and residence disputes will become things of the past, and that out of court mediation and conciliation will be encouraged.”
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