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Court of Appeal re-states approach to implacable hostility cases

Father’s appeal is dismissed in 'tragic outcome'

In Re A (A Child) [2015] EWCA Civ 910 the Court of Appeal has re-considered the approach to cases of implacable hostility to contact. Despite no findings against the father, the court upheld an order for no direct contact with the father.

At the centre of this case was the parties' son, B (12), who together with his mother had significant psychological and emotional vulnerabilities connected with the very issue of contact with F. The judge at first instance concluded that it was inappropriate to make an order for direct contact at the time, but made an order for limited indirect contact. F appealed.

The parties separated in 2005 and there was initially some contact for an hour or so twice per week until 2006. Contact then broke down and, despite the initial strong attachment between the father and B, matters then deteriorated. However, when contact did take place, this was a positive thing. Despite a recommendation that contact be stayed pending further investigation in 2007, F then withdrew his application due to the impact that the stress was having on the mother. Before the Court of Appeal, F described this as the most ill-advised decision of his life.

F then made another application in November 2010, M having developed and consolidated an increasingly negative view of F as harmful, B also adopting that view. It was 4 years later that the matter finally came for determination.

M was assessed as having a very high level of anxiety, meeting the criteria for PTSD, although whether this was due to domestic violence or perceived threat was not clear. The psychologist's view was that contact would not succeed. M was continuously communicating to B that F was dangerous. The assessment of F was altogether more positive.

The judge at first instance held that F was a "calm, thoughtful and caring man" and "somebody who does not present a risk to [B]". B was also held to have suffered emotional harm from his experience in the care of M. However, the judge dismissed the application for change of residence by F, even on an adjourned or suspended basis, and made no order for direct contact.

McFarlane LJ, giving the judgment of the Court of Appeal, states that "it is and should be a given that it will normally be in the best interests of a child to grow up having a full, real and entirely ordinary relationship with each of his or her parents, notwithstanding that they have separated and that there may be difficulties between the two of them as adults." He then considers the approach to be taken in implacable hostility cases, restating what he said in Re W (Direct Contact) [2012] EWCA Civ 999:

That said, McFarlane LJ held that the judge was right to identify the harm that B would likely suffer if direct contact was ordered from nothing. He states that in the end, there really was no ground for choosing any other way forward than the judge found in this case. The court was faced with a 12 year old boy who was consistently saying "no" to contact, and M who was found to be emotionally and psychologically vulnerable about contact. So much time had gone by since contact last properly took place (6/7 years) that the judge was entitled to find that restarting contact would not work.

The Court of Appeal describes this as a tragic outcome to the case, but dismissed the appeal on the issue of contact and residence.

For the judgment and summary by Kyra Corwall of 1 Hare Court, from which this item is derived, please click here.

23/8/15