It’s tough being a parent. For parents whose relationship has broken down, bringing up children whilst separated can be harder still. The recent appeal in the case of Re H-B (Contact) highlights just how badly separated parents can behave towards one another, in the process inflicting major damage towards their children that may last for many years to come. The case makes very depressing reading, whether as a family lawyer or a simple bystander. It highlights that occasionally, “family cases present problems that regrettably the courts cannot solve despite all their endeavours” and that solving those problems, “so often lies in the hands of the parents.
The background to the case is quite straightforward. The parents met in 1993 and were together for 10 years. They have 2 children, being J (who was 16 at the time of the appeal) and K (who was 14 at the time of the appeal). After their parents separated, the children lived with their mother and had regular contact with their father including staying with him on alternate weekends. He also assisted with the school runs. The tragedy of this case is that these parents clearly were capable of making child arrangements that worked well and allowed the children to maintain proper relations with both of them. Unfortunately, a single event in 2008 appeared to change all that.
The father had remarried in 2008 and in June of that year an incident occurred between J and the father’s new wife. In short, the new wife grabbed J and pushed her down on the sofa. J was only aged 9 at the time and it was accepted that the incident would surely have been frightening for J. The father did not appear to intervene effectively to prevent the incident and when confirming his version of events to the police, minimised the seriousness of the same. The mother was clearly unhappy at what had taken place. She applied for an order for the children to live with her and for contact between the children and their father to be suspended.
It did not take long for all sorts of allegations to be levelled at the father by the mother. There were complaints that he bombarded the children with telephone calls and he was criticised for behaviour at a school bonfire event. The children indicated that they did not wish to see him. Expert involvement concluded that the children required therapy and the father should maintain indirect contact with them in the interim. He was also advised to write a letter to the children, apologising for the events of June 2008. Whilst he did so, his apology was a conditional one and he refused advice to amend his letter. His letter was never sent as a result. The father was criticised for being stubborn. The mother was criticised for refusing to accept assistance and advice from professionals.
Therapy ended in February 2010 when J made allegations of sexual abuse by her father. The conclusion of the local authority that investigated the allegations was that the mother was the source of the allegations. It was by now clear that this was a complex and difficult case. The judge did not believe that further therapy would be helpful for the children. Instead, he wanted a finding of fact hearing to determine whether there was any truth to the allegations made by the children and the mother. It is hard to fault the logic of the judge here – his concern was that it could be highly damaging for the children to receive therapy on the basis that allegations are true when they are not.
The judge’s findings were given in December 2010. He concluded that most of the allegations made against the father were untrue. He could not say for certain where the false allegations came from but felt it was most likely that the mother was to blame. He was also critical of the father’s conduct. In short, “both parents were behaving with ridiculous hostility to each other.” It seems clear that the judge was hopeful that by addressing the parents directly, the message might sink in that they were both to blame.
Neither parent really appeared to accept that message. The father, perhaps frustrated but certainly misguided, did little to help himself. He sent postcards to the children including phrases such as “see you soon” and removed child benefit monies from a bank account. By the latter part of 2011 it was clear that the children were entrenched in their hostility towards their father and his family. The judge concluded that the proceedings should be brought to and end. Further therapy was tried but was delayed in getting underway and ended prematurely as the children were said to be reluctant to attend.
The father returned the case to the court arena in late 2012 and a further hearing took place in September 2013. The judge was again critical of both parents. The father was criticised for “startlingly unwise” behaviour. The mother was condemned for failing to support and promote direct contact and therapy for the children. The judge summarised the situation as follows:
“these parents are simply not able to organise themselves responsibly in relation to the father’s contact and they bear the burden of knowing that, between them, they have destroyed the relationship between these children and the father and his family.”
With reluctance, the judge concluded that he simply could not order the restoration of direct contact between the children and their father. The father appealed that decision but subsequently withdrew the appeal so the parties could try mediation. Mediation failed to resolve matters. It appeared that the father was unable to accept that the children did not wish to see him. A further hearing took place in July 2014. Once again, the judge did not hold back from criticising the parents:
“In my opinion the mess that these parents have made of their shared responsibility for their children is a disgrace. I predict that it will only be in later life that the manifestations of what these parents have done to their children will become apparent as the children struggle to function as adults following the skewed childhood that their parents have both chosen to give them.”
The judge, once again, concluded that to order direct contact between the children and their father would be futile. He made an order for indirect contact only, once every 2 months. The father was to be kept informed of their progress at school and could visit their school when the children were not present. As the father still planned to continue fighting his case through the court arena, the judge made an order preventing the father from making any further applications regarding the children without first obtaining permission from the court.
The father appealed against that decision. The Court of Appeal dismissed the appeal. They could find absolutely no criticism of the judge’s conduct and wholly endorsed the approach he had taken to a complex case. The President of the Family Division commented:
“…the stark truth is that responsibility for the deeply saddening and deeply worrying situation in which J and K now find themselves is shared by their parents and by no-one else.”
Whilst the President condemned both parents for creating and causing the situation, he was very clear that it was only the mother who now held the ability to move matters on. He plainly addressed her within his judgment and felt it was now her duty towards the children to recognise her failings towards the children and make every effort to restore their relationship with their father. It appears that the judge was less than hopeful that the mother would take those words to heart. He warned her that, sooner or later, the children would become fully aware of their parents’ failures and this could lead to them being estranged from both of them. The President described that outcome as one “that haunts me in cases like this.” It is hard to disagree.