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Mother successfully appeals against findings of fact made against her

Despite the impression that may be gained from other posts I have written here, it is very unusual for findings of fact to be overturned on appeal. The reason for this is simple: the appeal court does not have the benefit of seeing all of the evidence (and hearing the witnesses), in the same way that the court that made the findings. How can the appeal court make different findings without seeing all of the evidence?

However, it is possible for a judge to be in error in reaching conclusions that are not supported by the evidence. That was the situation in the recent case A (Children), which concerned a mother’s appeal against findings of fact made against her.

The facts in the case were quite complex, so I will simplify them, and the main issues, for the sake of clarity.

The parents were both born in Pakistan. When they were married in 2001, the father had been living in the United Kingdom for some time and was a UK national. The mother came to England in 2002, once she had been granted a spousal visa. The visa, however, would lapse if she spent more than two years outside the UK.

The parents had four children who, by the time that the mother’s appeal was heard last November, were aged between 16 and 10.

In May 2012 the whole family travelled to Pakistan following the death of the maternal grandmother. They stayed there until February 2016, when the father returned to the UK with the children. In May 2016 the mother, still in Pakistan, commenced child arrangements proceedings in this country. The mother eventually obtained a visa enabling her to return to the UK in October 2017.

A crucial issue in the case was why the mother had not returned to the UK with the family. The mother claimed that the father had stranded her in Pakistan, by retaining her passport and preventing her from returning before her visa lapsed. The father denied that he had stranded the mother, and claimed that he had given the passport to the mother’s family.

Connected to this issue was the fact that the children were vehemently opposed to having contact with their mother, and were also abusive towards her, their abuse being “perhaps the worst” that the children’s Guardian had seen in decades of experience. The mother claimed that the father had alienated the children against her, in part by suggesting that she had abandoned them by remaining in Pakistan. So in very simple terms the question was: had the father stranded the mother as part of a plan to turn the children against her, or had the mother not actually been stranded, and just chose to remain in Pakistan?

At the first hearing Mr Justice Keehan found that the father had withheld the mother’s passport from her, but the mother had not been stranded, because she had been able to obtain a replacement passport without the assistance of the father, although she had not explained why she did not. The mother appealed against this finding, to the Court of Appeal.

Giving the leading judgment of the Court of Appeal Lord Justice Moylan noted that Mr Justice Keehan found that the mother was “an extremely unsatisfactory witness”, and that the father was “in the main, candid and honest in his evidence”. However, his conclusion that the mother was not stranded was not supported by his analysis. The fact that the mother had a ‘remedy’ (i.e. to obtain a new passport and visa) did not detract from the fact (as Keehan J found) that the father had withheld the mother’s passport from her. Lord Justice Moylan explained:

“Simply stated, the judge’s determination that the mother was not stranded is inconsistent with his finding that the father kept the mother’s passport. This was the key act which impeded her ability to return to this country and, in particular, to return prior to the expiry of her visa. The judge’s reasoning … that the mother might have been able to take steps herself to overcome the situation created by the father and had not explained why she had not, cannot, therefore, support his determination.”

Accordingly the appeal was allowed, and the case remitted back to the lower court for rehearing.

The full judgment can be read here.

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Author: John Bolch

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Mother did not fail to protect her children

I don’t normally comment here in detail on public law cases, but as the events that happened to the mother in the recent case L-W Children could happen to pretty well any parent, I thought it might be of interest to readers of this blog.

The case primarily concerned the mother, her four year old daughter (‘L’) and the mother’s new partner (‘GL’), who was not L’s father but had fathered twins with the mother. The mother, GL, and the three children appeared to be a perfectly ‘normal’ family. As Lady Justice King remarked:

“Prior to the events which took place in January 2018, there had not been, and there was no reason to believe that there should be, any involvement by social care in the domestic lives of either the mother or GL.”

It was true, she said, that GL was known to have a quick temper, but there was no suggestion that there had been violence at any time within the household. It was also true that L, as is not unusual for children of her age, was known to tell lies about various matters.

So what happened in January 2018? Well, it was the nightmare scenario for the mother.

On Friday the 12th of January and Saturday the 13th, L stayed overnight with her father, returning on Sunday the 14th. The mother went to work on the Sunday afternoon, leaving the three children in the care of GL. So far as the mother was aware, L went to bed in the usual way between 6-6.30pm, as did the twins.

The mother returned from work at 10.15pm. She went upstairs to kiss L goodnight, and noticed a lump on her forehead. L told her that this had happened when she had fallen on her doll’s house whilst visiting her father. As the only light in the bedroom was a nightlight, the mother did not notice any other bruising to L’s head or face at that time.

The following morning the mother saw that the lump on L’s head was significantly bigger, and that she had bruising to the left-side of her face and her ear. When asked how she had come by the bruises, L said that her father’s partner had caused them. The mother checked L’s whole body and discovered a number of fresh bruises.

The mother then phoned the GP in order for L to be checked out, and also called the health visitor. In addition she contacted GL, who was at work, and L’s father, asking what had happened to L whilst she was in his care. GL returned home. The mother did not ask him what had happened to L, as she was afraid that this would have “caused a big row”.

GL told the mother not to go to the GP, but the mother ignored him. A child protection referral was made and at the subsequent child protection medical, a number of very concerning bruises, particularly around L’s left ear, were seen. The bruises were highly indicative of non-accidental inflicted injuries.

Care proceedings were commenced in April, and at a hearing in September the judge found that GL had inflicted the bruising to L, and that the mother had failed to protect L from physical abuse at the hands of GL, and also her other two children from the risk of physical abuse at the hands of GL. The mother appealed against that finding, to the Court of Appeal.

Giving the leading judgment of the Court of Appeal Lady Justice King found that there was no evidence which could properly lead to a finding that the mother failed to protect her children. She knew that GL had a short temper, and had been involved in violent incidents with two adult males, but this did not mean that she should have known that he presented a risk of physical abuse to L or the twins, and that therefore she should not have left the children in his care. She had failed to ask GL what had happened whilst she was at work, but GL’s “unattractive personality traits and/or the controlling personality of GL did not prevent the mother from acting quickly and appropriately when her child was injured, and she maintained her independence sufficiently wholly to ignore GL’s suggestion that L should not be taken to see a doctor.”

The appeal was therefore allowed, and the finding against the mother deleted.

As I indicated at the beginning of this post, it is easy to imagine this kind of scenario happening in many families. After all, who really knows what their partner is capable of? This mother, however, could not have been expected to know, and when she found out what had happened to her child she did pretty well all of the right things. To say that she had failed to protect her children would be harsh in the extreme.

You can read the full judgment here.

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Author: John Bolch

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How can a prenuptial agreement protect a business?

Getting married is usually a carefully thought out and planned event. Even if it is a spur of the moment courthouse wedding, spouses think about what it means to be married. For some, this thought comes into play long before the wedding ceremony. And, because of this, spouses may consider what kind of role marital agreements might have. A prenuptial agreement may be a beneficial document to consider prior to a couple’s union.

The thought of divorce before a marriage has even begun is anything but romantic. Although the conversation can be difficult, including a prenuptial agreement in a marriage can help not only obtain useful financial information about an intended spouse, but it can also highlight what safeguards a person might want to include. This is especially true for those who have their own business.

How can a prenup protect a business? Prenups are a source of protection, and if one spouse has significantly has more assets, it is clear that protections are in order. Whether it is a small business or a family business, it is important to details how exactly a person wants the business treated. Much like a divorce impacts all the areas of a marriage, a divorce could reach a business, impacting its ability to remain.

By keeping a business separate from marital property, the longevity of a business is protected. This not only keeps the operation of the business running smoothly, it also ensures that the profits from the business are not up for division.

There are many things to think about when getting married, as it is two lives coming together as one unit. It is important to consider a premarital agreement and how it could benefit you.


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Author: On behalf of Katie L. Lewis of Katie L. Lewis, P.C. Family Law

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What will be the next great family law reform?

One should never of course count one’s chickens, especially when it comes to the promises of politicians, but let us just for one moment assume that the long battle to bring in no-fault divorce has been won. What, then, will be the next great family law reform? What do people want in terms of changes to the substantive law (rather than just to the procedure), and which of those things is likely to happen?

There are, of course, other reforms in the pipeline apart from the introduction of no-fault divorce.

The battle to bring in civil partnerships for same-sex couples, for example, also seems to be almost over. It may not affect so many as no-fault divorce, and the battle may not have taken anything like as long, but it was certainly hard-fought, also going right up to the Supreme Court last year.

And the law on domestic violence/abuse is also in the process of being overhauled, hopefully for the better.

But it is not all good news. Things may be happening on the legal aid front, but the battle there is essentially lost. We will never return to a system where everyone has equal access to the law, irrespective of their means. Sadly, the law will for the foreseeable future be a two-tier system, with only the better off receiving a proper service.

There are, of course, other changes under way, such as the introduction of Specialist Financial Remedy Courts, but that is a procedural reform, rather than a reform of the law itself. Similarly, digital ways of doing things, for example issuing divorce proceedings, are just changes to procedure.

So divorce, civil partnership, domestic abuse and legal aid do not seem likely candidates for further reform. What about other areas?

There are some calls for reform of the law relating to financial remedies on divorce, notably from Baroness Deech, who is seeking to push her Divorce (Financial Provision) Bill through Parliament. But the Bill is certainly not generally supported amongst family lawyers, having been strongly criticised by several eminent members of the profession. Whilst many do think that reform in this area is needed, there seems to be little consensus as to exactly what form the reform might take. It seems to me that any reform here is likely to be piecemeal, rather than anything that will make dramatic changes, in the way that no-fault divorce will. But then again, I could be wrong.

Moving on, there are, of course, still many shrill voices calling for further reform to the law on arrangements for children following parental separation (as I suspect there always will be), but there doesn’t really seem to me to be any great will for such reforms amongst family lawyers, and those currently in power. There has, of course, been much tinkering in this area over recent decades, and maybe it is time for a period of consolidation. Whatever, whilst there are probably few who think the present system is perfect, there again seems little consensus as to exactly how it might be further improved.

Which brings me to the introduction of property rights for cohabitees. Here, rather like with the introduction of no-fault divorce, there is great support for such a reform amongst family lawyers. There does not, however, seem to be much current appetite amongst the powers that be for this reform. They did discuss the possibility a few years back, but then kicked it into the long grass. Still, perhaps we family lawyers, free of the burden of promoting no-fault divorce, and flush with our success in that area, may be able to mount a similar campaign in this area? Once again, I suspect that the battle may be long and hard, but it would certainly be worth it.

Or maybe the next great family law reform will be none of these things. Maybe it will be something entirely new, something that will revolutionise the system in a way beyond my limited imagination.

One thing is certain, though. Whatever changes there may be, there will always be calls for more. That is how it has always been, and that is surely how it should be.

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Author: John Bolch

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Tax and divorce: what you need to do before 5 April 2019

As we head ever closer to the end of the current tax year, it is vital that all divorcing and separating couples seek professional advice if they are considering a transfer of assets.

For most divorcing couples, tax issues are way down on the list of things to be considered, however, the impact of the tax on the eventual settlement should never be underestimated.  By carefully planning the settlement, it should be possible to minimize the tax cost of any transfers between the parties, thus leaving the maximum amount possible for distribution.

Whilst the impact of both income and inheritance tax must be considered, there is no immediate charge under either tax upon the transfer of assets under a divorce settlement.  However, there are immediate Capital Gains Tax (‘CGT’) implications.

Spouses are treated as ‘connected parties’ for most purposes in CGT, and this remains the case throughout any period of separation or divorce proceedings until Decree Absolute is pronounced.  The basic rule is that up to and including the tax year of permanent separation, the transfer of assets between spouses (eg shares in the family business, investments or property) takes place on a “no gain, no loss” basis because they are ‘connected’.  Hence, there is no immediate CGT liability arising on either the transferee or transferor.

However, gains arising on any asset transfers made following the tax year of separation but before Decree Absolute are assessed on the transferor spouse. Therefore, wherever possible, a transfer of assets between spouses, particularly those assets where a CGT liability may arise, should be made before the end of the tax year in which separation takes place.  

For those couples who do not separate until after 6 April in any year, they will have up to twelve months to arrange their tax affairs in the most efficient way.  However, the tax current tax year ends in just under eight weeks so, for those who have already separated, the opportunity to make the best use of the “no gain, no loss” rule is fast disappearing.  

It is worth remembering that post Decree Absolute, former spouses are no longer treated as ‘connected’ and transfers between them are no longer deemed to take place at market value.  Gains (or losses) in that scenario are then calculated based on actual consideration received.

Professional advice on this matter should be sought by all divorcing or separating couples as soon as possible.

Suzanne Grant is a member of the firm’s forensic team and has many years of expertise in advising on complicated financial matters arising upon divorce and separation.  She can be contacted at our Harrogate office on 01423 532600.

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Author: Suzanne Grant

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A Week In Family Law: Cafcass figures, Three Cases, and more

It’s been a fairly quiet week for family law news, following the excitements of last week. Here are the highlights:

I’ll start with the latest figures for care applications and private law demand, for January 2019, which have been published by the Children and Family Court Advisory and Support Service (‘Cafcass’). In that month the service received a total of 1,051 new care applications. This figure is 10.2% (120 applications) lower than January 2018. As to private law demand, Cafcass received a total of 3,636 new cases during January 2019. This is 3.6% (127 cases) higher than January 2018, and third highest January on record. So once again we have better news on the public law front, but worse news in relation to private law.

Next there were three cases that made the headlines this week:

Firstly, a public law case that carries a message to anyone involved in any family proceedings, especially if they are not represented. A judge has been criticised by the Court of Appeal for ‘bullying’ a mother into agreeing to interim care orders for her two young children, against her wishes. Lord Justice Peter Jackson agreed with the mother that her consent or non-opposition to the interim care orders “was not freely given, but was secured by oppressive behaviour on the part of the judge in the form of inappropriate warnings and inducements.” He went on: “Regardless of the fact that the mother was legally represented, she did not get a fair hearing.” Accordingly, the mother’s appeal against the orders was allowed. You can read the full report of the appeal here.

Secondly, a case that I wrote about here on Tuesday. A High Court judge has praised lawyers who act ‘pro bono’ (i.e. without charge), saying that: “So far removed from the stereotyped ‘fat-cat,’ the legal profession in cases such as this are more akin to Boxer in George Orwell’s ‘Animal Farm’ always telling themselves “I will work harder.” “Without such public-spirited lawyers”, asked Mr Justice Williams, “how would those such as the father and mother in this case navigate the process and present their cases?” He went on: “How judges manage to deliver justice to the parties and an appropriate judgment for the child without such assistance in cases like this begs the question. It is a blight on the current legal aid system that cases such as this do not attract public funding.” It is indeed a blight and, as I pointed out in my post, one that it seems the government is going to do little about, if its recent review of the effects of the legal aid cuts is anything to go by.

Thirdly, another public law case, this time with an unusual outcome. A court has ruled that a young girl whose parents cannot care for her should be brought up by a stranger, rather than her grandparents. District Judge Graham Keating decided that the girl, who was born in 2017, would be better placed in the care of a friend of the girl’s mother, rather than her father’s parents, despite the fact that the friend had never met the girl. Making a special guardianship order in favour of the woman, he said that although the strength of the blood relationship was “very powerful” it was “not definitive”. You can read the full judgment here.

And finally, it has been reported that a group of private backers has agreed to fund the problem-solving Family Drug and Alcohol Courts (‘FDACs’). For those who don’t know, FDACs are specialist courts that help parents deal with drug or alcohol addiction, so their children are not taken into care. FDACs have been extremely successful, with research indicating that families receiving FDAC are significantly more likely than families in standard care proceedings to be reunited with their children, and for the parents to have ceased misusing substances. Unfortunately, the national unit set up to support the courts shut down last year, due to lack of government funding. It has now been reported that a group of private backers and philanthropists has pledged £280,000 to fund a new national partnership to support and extend the model, and seek long term government funding. This is extremely welcome news, although it is an utterly remarkable (though sadly unsurprising) sign of the times that such a successful and highly regarded service should have to rely upon private funding for its existence. What next, judges with sponsorship on their gowns?

Have a good weekend.

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Author: John Bolch

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Unrepresented father fails in appeal against findings of fact

Since the legal aid cuts of 2013 we have been living in the age of the litigant in person. Just last week it was reported that government data revealed that 23,881 parents who applied for child arrangements orders in 2017 had no legal representation, up 134% since 2011. This is of course causing huge difficulties for the courts. The courts do try to make allowances for litigants in person, but justice of course demands that they are not given preferential treatment.

This was illustrated by the recent case of QC v UC & Others, which concerned an unrepresented father’s appeal against findings of fact made in his and the mother’s cross applications for child arrangements and specific issue orders relating to their three children. The appeal was heard by Mr Justice Williams in the High Court.

The judgment does not list the twelve findings of fact made against the father, but we are told that the judge in the court below concluded that he was “a deeply unsatisfactory witness”, whereas he found that the mother was a reliable witness on nearly every issue on which she gave evidence, and he therefore accepted (most of) her allegations. The father sought to appeal against “all the judge’s findings and decisions in regards to the whole case”.

As Mr Justice Williams explained, the father’s grounds for appeal boiled down to two matters:

“The grounds of appeal in essence allege firstly that the decision of the judge was wrong because he should not have accepted the mother’s allegations because she was a proven liar and there was no other evidence to support her allegations. Secondly, that there was a procedural irregularity in that the appellant father was unable to properly present his case”

As to the first of those grounds, Mr Justice Williams found that the judge in the court below had “conducted an extremely thorough and detailed evaluation of the evidence in respect of each of the areas where findings of fact were sought.” He was clearly entitled to make the findings that he did and, as stated, he found that the mother was a reliable witness on nearly every issue on which she gave evidence.

As to the second ground, the father had complained:

“I feel the judge didn’t take into consideration how being on my own in the court representing myself against two other solicitors was a very nervous time for me and considering the allegations against me made it all the worse”

Specifically, the father said that he was suffering from anxiety in court which may have affected his demeanour, and led the judge to say he was evasive towards questioning. He also said that he could have obtained further evidence to support his case, but had not known that he could. Mr Justice Williams did not accept these points. He said:

“The judge was clearly very much alive to the fact that the father was a litigant in person. In paragraph 67 and 68 [of the judgment] he refers to the issue and how the judge had sought to ensure that the father had a fair hearing by allowing him the opportunity to put further documents for the court and to put questions on the father’s behalf to witnesses.”

He also said:

“I cannot see that there is any case to show that the father was unable to put relevant material before the court because of his lack of legal representation. In particular there is nothing which suggests there was anything which was of such significance that it could have materially altered the overall evidential picture before the judge. The transcript makes clear that the father was well able to speak up for his position when he gave evidence and there is no evidence that any anxiety materially hampered his ability to present his case.”

In short, allowances had been made for the fact that the father was unrepresented, and the father was not entitled to anything more.

Mr Justice Williams concluded that there was no substance in any of the father’s grounds of appeal. Nor was he able to identify anything else that might arguably indicate that the judge was in any way wrong in the conclusions that he reached, or that the decision was unjustified by reason of any procedural irregularity. The appeal was therefore dismissed.

You can read the full judgment here, and if you are an unrepresented litigant aggrieved at the findings of the court, then I would recommend that you do.

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Author: John Bolch

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Stowe guests: Seven tips to survive Valentine’s Day from a divorce coach

For the Valentine’s Day Stowe guests, we catch-up back again with a regular blogger for us, Claire Black from Claire Black Divorce Coaching.

Claire is one of the UK’s first accredited specialist Divorce Coaches, a former lawyer, and Advanced NLP Practitioner. Today, she shares her tips on how to handle Valentine’s Day when you are going through a divorce or separation.

When you’re in the middle of a separation, Valentine’s Day might seem like the last thing you need right now. All those reminders of romantic love, emotions and dinner dates. The commerciality of Valentine’s Day is almost impossible to ignore. Even Google will probably change its logo to surround it with floaty hearts.

For those of you who are going through a break up, Valentine’s Day can be sad and depressing. I know, I’ve been there. It is easy to feel low and lose yourself in thinking about the “what if’s and the regrets.

I am here to reassure you that you do have a choice. Like me, you can consciously decide to make things different. You have power over the remote control to your brain, and there are things you can do to dial down your feelings.

So, I’ve created a list of my top seven tips to handle Valentine’s Day this year.

Ask yourself empowering questions

Your brain will always try to answer the questions you ask it.  Try asking yourself how you can make the day better for yourself. How could you show yourself a little love? Buy yourself flowers, go on a ‘date’ with your kids, watch a funny movie, or buy yourself those chocolates. Why rely on someone else to do it for you?

Flip your focus

Instead of thinking about what you might be missing, think about what you DON’T have to put up with any more. What always irritated you about your ex? What can you do now that you couldn’t do before?

Disconnect from social media. Don’t check up on your ex, to see what they are doing. That way madness lies. Instead, flip your focus back to yourself, and what you can do to make things that little bit easier.

Have some fun and do something different

Spend time with other people in a similar situation. Get together with your single friends, and have an anti-Valentine’s Day get together, or a games/movie night. Try out that new class you’ve been meaning to go to.

If you and your ex always went to the same place, or did the same thing on Valentine’s day, make a conscious effort to do something different – try something your ex would never have done but that you know you’re going to love. Create a new memory that, in time, will override the old ones.

Show your loved ones how much you appreciate them

Valentines doesn’t have to be about romantic love. So today, let your kids, your family, your friends know how much you love and appreciate them. Give your best friend a call and let them know how much you appreciate the support they have shown you over your break up.

Spread the love

Do something kind for someone else. When we do kind things for others, it boosts our serotonin levels, the neurotransmitters which help us to feel satisfied and content. Many anti-depressants work by increasing serotonin levels in our body – why not do the same thing simply by doing something nice for someone else?

Have an attitude of gratitude

Gratitude is a fantastic antidote to stress. Write a list of all the things in your life that you are grateful for and stick it to your fridge. Concentrate on it for 30 seconds and see how you feel. Do you notice your mood lifting? Consciously looking for the good things we have also helps to boost your feel-good hormones, and it will train your brain to start looking for the positives, even when things might seem really challenging.

Know that this too shall pass

Remind yourself that this too will pass. You will feel better, you will get through this. If this is your first Valentine’s Day on your own, know that you will never have to go through this “first” again.  Next time will always be easier.

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How cuddle therapy can help when going through a divorce

In this instalment of Stowe guests, we are joined by Rebekka Mikkola, Lead Cuddle Therapist and Founder of Nordic Cuddle. London-based Nordic Cuddle are one of the fastest growing cuddle therapy companies in the country and provide sessions to clients dealing with stress, divorce, anxiety and loneliness.

Dealing with a separation

There can be few events in our lives as emotionally taxing as the breakdown of a relationship. The bonds that were formed and lives that became intertwined have to begin a process of separation, which can take a heavy toll on our wellbeing.

The feelings of loss are compounded by the fact that separation is about more than just losing a partner. A change of home may be in order, social circles may shrink and financial security may become more precarious. On top of that, families with children have the added pressure of arranging how and when parents will spend time with them.

In addition, many people often describe a feeling of failure which accompanies a relationship breakdown. As such, our self-esteem can take a big hit and this can also affect our whole persona, not to mention our outlook on life.

How cuddle therapy can help

At Nordic Cuddle, we provide cuddle therapy sessions, which involve platonic hugs, cuddling, hand-holding and gentle arm rubs, combined with talking therapy. We’ve found that cuddle therapy has been particularly helpful for people going through a divorce, because it provides a sense of comfort and connection at a time when both of these things have been torn from our lives.

Cuddle sessions with a trained and understanding practitioner can be nurturing and help heal negative perceptions of our self-worth. This is because human touch can flood our bodies with feel-good hormones, such as serotonin and oxytocin.

The release of these chemicals can also help tackle stress, another major impact of separation. During this difficult time, our body will release increased levels of the stress hormone cortisol by activating the sympathetic nervous system (also called the ‘fight or flight’ response). As such, oxytocin levels will drop and we’ll feel more stressed and have a low mood in general.

These effects can be reversed through hugs and cuddles, which trigger the release of feel-good hormones, which help mitigate stress. Affectionate touch activates our parasympathetic nervous system, which is the body’s natural relaxed mode. Keeping stress under control is vital, because it can lead to a range of mental health and physical wellbeing issues, if left unchecked over a prolonged period of time.

When London-based Balance Magazine tried one of our cuddle therapy sessions last year, they said, “If you’re feeling imbalanced, it’s a place to go to return to calm and serenity.” We think this is a great description and believe cuddle therapy provides a holistic approach towards re-building self-confidence and tackling issues like stress, which arise during a separation.

The combination of comforting touch coupled with the opportunity to speak about personal issues can be especially powerful and can create a connection very quickly. When you try a cuddle therapy session, you’ll be in the caring hands of a trained professional and will feel a sense of calm amid the chaos, during one of life’s greatest challenges.

Get in touch

To contact Nordic Cuddle and find out more about their services, you can visit their website here.

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Father obsessed with his rights fails to achieve sole parental responsibility

As any experienced family lawyer will be able to attest, it is a common occurrence that a parent involved in a dispute regarding arrangements for their child will, consciously or not, put what they consider to be their ‘rights’ ahead of the welfare of the child. However, whether they consider that their rights are more important, or whether they simply believe that their rights coincide with what is best for the child, this attitude can be both wrong and very unhelpful, possibly causing serious damage to their case.

An example of this phenomenon is the case C (A young person). The judgment in the case was handed down last July, but was only published (to my knowledge) last week.

The facts in the case were extremely sad, though thankfully unusual. The case concerned a 16 year old girl who had lived exclusively with her mother until her mother unexpectedly died from cancer in January 2016. She had not had any contact at all with her father until she was ten or eleven years of age. After her mother’s death she went to live with her maternal aunt and her family, and the aunt applied for a child arrangements order to be made in her favour. The father became involved in the proceedings and in October 2017 a shared care order was made in favour of the father and the aunt. Both the father and the aunt were given parental responsibility.

In March 2018 the father applied for a child arrangements order to be made in his favour on the basis that the child was by then living with him, his objective being that he would be the only person who had parental responsibility for the child. Both the child and the aunt opposed the application, which fell to be determined by Mr Justice Keehan in the High Court.

In the course of the evidence it became clear that the child was very attached to her aunt, and that she wanted to continue to have a close relationship with her. On the other hand, the child felt very insecure in her relationship with her father, and feared that he would not support her relationship with the aunt or her maternal family after the case was concluded. It was also clear that the father had much work to do to establish a close relationship with the child.

Mr Justice Keehan found that the aunt was “an emotional and psychological parent” to the child. The father, however, did not accept this. It was also found that the father was not meeting the child’s emotional and psychological needs, in particular he would not promote, or see in a positive light, the child’s need for a close relationship with the aunt and with her maternal family. In short, he found that:

“The father is, in my view, obsessed with his rights as a parent and does not focus on his duties and responsibilities to nurture or to be sensitive to the needs of his grieving daughter.”

The father claimed that the child had made it impossible for him to exercise his parental responsibility by her support of the aunt, and found it “perplexing and bizarre” that the child wanted the aunt to have parental responsibility. These things, said Mr Justice Keehan, graphically illustrated his “assessment of the father as a man obsessed with his rights as a parent and not with the extremely important emotional and psychological needs of his daughter.”

In the circumstances Mr Justice Keehan made a child arrangements order that the child live with her father, which reflected what was happening on the ground, and made a child arrangements order that she spend time with her aunt, on no less than three occasions a week. He also granted parental responsibility to the aunt (I’m not quite sure why he did this, as my understanding is that the aunt already had parental responsibility). He concluded:

“I am satisfied that these combinations of orders will meet the welfare best interests of [the child]. They will enable her to live with her father and, as she wants, to build her relationship with him, but it will provide her with the very important emotional and psychological comfort that she requires from her relationship with the aunt and, through her, with the wider maternal family who are all so very, very important to [the child] and to her future welfare.”

The case is another demonstration that the ‘rights’ (if we can use that word at all) of the parent are not what is important in a dispute over arrangements for a child. What is important, indeed paramount, is the welfare of the child. The court will therefore always be guided by what is best for the welfare of the child, not by the rights of the parent (or, indeed, of any other person). Any parent involved in such a dispute must therefore put aside any thoughts of their ‘rights’, and focus on the welfare of the child.

You can read the full judgment here.

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Author: John Bolch